Terms and Conditions
- AGREEMENT. Purchaser and The Quikrete Companies, LLC for itself and/or on
behalf of one or more
of its subsidiaries ("Seller") acknowledge, understand and agree that the Purchaser's
any, the Quotation, if any, the specifications stated in the Quotation and these Standard Terms
(collectively, the "Agreement") shall collectively form the sole and entire agreement
and pursuant to
which Purchaser shall purchase from Seller, and Seller shall manufacture and sell to Purchaser,
described in the Quotation (the "Materials"). This Agreement supersedes any and all
oral or written agreements between the parties regarding the same.
Any different or additional terms or conditions contained in Purchaser's acceptance of the
Quotation, or any
document or instrument constituting this Agreement, whether by purchase order or otherwise, are
to by Seller and shall have no effect on, and not become part of, the terms and conditions of
Additional terms, changes, and alleged subsequent agreements shall not be effective unless and
until any of the
same are in writing and signed by Seller's and Purchaser's authorized representatives.
subsequent changes made to the Quotation, these Standard Terms and Conditions (in the form
or attached to the Quotation) shall continue in full and unvaried force and effect except to the
by written agreement signed by Seller's and Purchaser's authorized representatives.
Purchaser's signature to the Quotation, direction to manufacture of the Materials, acceptance of
delivery of the
Materials or the payment for the Materials, shall be deemed an acceptance of these Standard
Conditions. Seller may elect not to manufacture or deliver any Materials until Purchaser returns
a signed copy
of the Quotation.
- DELIVERY AND ACCEPTANCE. Delivery of the Materials shall be made pursuant to a
schedule agreed to by Purchaser and Seller. Purchaser agrees to give the Seller reasonable
notice of the time
and rate of deliveries. Seller shall not be deemed to have failed to comply with such schedule
for any delay
where such delay is caused by acts of God, acts of civil or military authority, epidemics, war,
riot or any
other reason or cause beyond Seller's control. In connection with any such delay, the agreed
shall be extended for a period equal to the duration of the delay.
Seller's responsibility for delivery shall cease FOB shipping point or, if Seller agrees to
jobsite, at the curbside or street or frontage of the address of delivery. Seller reserves the
right to charge
Purchaser at the applicable rate for any waiting time at the jobsite in excess of one (1) hour.
The type and quantity of Materials delivered and detailed on the delivery ticket must be
inspected by Purchaser
at the time of delivery for compliance with the Agreement. Variations between actual quantities
delivered and those shown on the delivery ticket must be noted on all copies of the delivery
ticket signed by
Purchaser. Invoice charges will be based on the quantities shown on the delivery ticket.
Title and risk of loss of each of the Materials shall remain with Seller until delivery of such
Materials to the
delivery location specified in this Agreement. Purchaser hereby grants Seller a first priority
in all such Materials until such time as Seller is paid in full all amounts due under this
further agrees to execute any and all documents that may be required for Seller to perfect such
Standard Materials sold under this Agreement may be returned by Purchaser for credit only with
written consent and only if, in Seller's sole opinion, the Materials to be returned are in
condition. Seller will deduct from any such credit any and all restocking fees, loading and
disposal fees, and any costs of repair and delivery costs to and from Purchaser's jobsite.
special Materials of other than normal and standard design regularly sold by Seller may not be
Purchaser will be liable to pay for any custom-designed or special Materials not taken by the
- PRICING AND PAYMENT. Unless stated otherwise herein, prices for the Materials
subject to material availability and shall remain firm for a period of thirty (30) days after
the date of the
Quotation; thereafter, prices for the Materials are subject to change by Seller. Pricing for
undelivered, Materials are subject to change at any time to account for cost increases and
volatility in respect
of materials, fuel, energy, and transportation. Prices quoted are based on minimum truckload
lots and are
subject to increase should Purchaser request delivery in lots smaller than truckload. Prices are
to the project specified in the Quotation, are available only to the Purchaser, and are only for
stated in the Quotation.
Payment terms are net 30 days, without retention or set-off. Seller will submit invoices to
Purchaser upon each
delivery of Materials pursuant to the Agreement. Purchaser's obligation to pay Seller will not
be delayed or
conditioned upon installation of the Materials furnished pursuant to the Agreement, Purchaser's
payment from any third-party, or any disputes between Purchaser and the Owner.
Past due amounts will accrue interest at the rate of eighteen percent (18%) per annum or the
allowed by law, whichever is less. Should Purchaser fail to pay when due any amount payable to
Seller under the
terms of this Agreement, after ten (10) days written notice without cure, Seller may: (a) make
Purchaser for assurances of payment, including but not limited to, requesting immediate payments
of all amounts
then due and owing to Seller under this Agreement; and/or requesting payment in advance of
delivery of all
future amounts to become due under this Agreement; (b) suspend future deliveries; (c) file a
claim of lien and,
if applicable, a claim on bond; (d) terminate this Agreement; or (e) take such other actions as
determines are necessary to secure its right to payment.
Seller may exercise the right of set-off under this Agreement as to any sums owed by Seller
affiliates under any other contract or agreement with Purchaser and/or its affiliates. Purchaser
agrees to pay
Seller any and all collection fees, attorneys' fees, and court costs incurred by Seller in
amounts due under this Agreement.
If during the life of this Agreement, Purchaser's financial responsibility or credit standing
or his method of paying accounts become unsatisfactory to Seller, Seller reserves the right to
to make payment in advance or give satisfactory security or guarantee that the invoices will be
when due and if Purchaser fails to do so, Seller reserves the right to cancel this Agreement.
- TAXES. In the absence of an exemption or resale certificate reasonably
acceptable to Seller and
to the respective taxing authority, all federal, state, and local taxes, assessments, fees,
duties and charges
levied by reason of this Agreement are in addition to the prices set forth in the Quotation and
shall be the
sole responsibility of, and paid by, Purchaser.
- LIMITED WARRANTY AND LIABILITY DISCLAIMER. Seller warrants its Materials to be
manufacturing defects when used or applied in accordance with the instructions on the packaging.
does not cover standard manufacturing variations, color variations/matching or efflorescence.
Seller is not
responsible for installation of the Materials or defective conditions caused by installation,
movement, substrate failure, abuse, impact, abrasion or alteration of the Materials,
earth-shifts, excessive or
unforeseen site conditions, acts of God or application of chemicals to the Materials. Liability
warranty, if found to be defective, is LIMITED to the replacement of the defective item of
purchased), or at Seller's option, the refund of the purchase price of the defective item of
warranty is valid for a period of one (1) year from the purchase of the Materials and is
the event of a claim under this warranty, notice must be given to Seller, together with original
purchase, at its headquarters by sending a letter to: The Quikrete Companies, LLC a/s
Warranties, 5 Concourse
Parkway, Atlanta, GA 30328. THIS WARRANTY IS ISSUED AND ACCEPTED IN LIEU OF ANY AND ALL OTHER
EXPRESS OR IMPLIED
WARRANTIES OF ANY KIND OR NATURE AND EXPRESSLY EXCLUDES LIABILITY FOR LABOR, FREIGHT AND OTHER
WITH REMOVAL AND REPLACEMENT OF THE DEFECTIVE PRODUCT AND FOR INDIRECT, SPECIAL, INCIDENTAL AND
DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSSES DUE TO DELAYS INCURRED BY THE ORIGINAL
PURCHASER OR ANY OTHER
Seller makes no warranty whatsoever with respect to goods, products, accessories or parts
furnished by Seller
but not manufactured by Seller, which carry only the warranty, if any, in the applicable
warranties (if any) to the extent permitted by the terms of such warranty between Seller and
This warranty supersedes the warranty found at https://www.quikrete.com/product-warranty/.
- LIMITATION OF LIABILITY. Seller's liability on any claim for loss or damage
arising from this
Agreement, or the fabrication or sale of any of the Materials pursuant to this Agreement,
whether based on
contract, warranty, tort (including negligence) or other grounds, shall not exceed the price of
actually received from Purchaser by Seller under this Agreement with regard to which such claim
for loss or
damage is made. Neither Seller nor Purchaser will be liable to the other party, or any third
whether as a result of breach of contract, warranty, tort (including negligence and strict
liability) or other
grounds, for special, consequential, incidental, punitive (if allowed by law) or other indirect
damages of any
kind, including, but not limited to loss of data, loss of profits or revenue, loss of use of the
furnished by Seller pursuant to this Agreement or any associated product, cost of capital, cost
products, facilities, services, downtime costs, or claims, or for liquidated damages (delay or
incurred by such party from any third party.
- INDEMNIFICATION. To the fullest extent permitted by applicable law, each party
"Indemnifying Party") agrees to indemnify, defend and hold harmless the other party
along with its respective officers, directors, owners, employees and agents (collectively the
from and against all claims, damages, losses, liens, causes of action, suits, judgments and
but not limited to reasonable attorneys' fees) of any person or entity, to the extent arising
out of, any
injury, death or destruction of property, but only to the extent caused by or arising from the
negligent acts or
omission of the Indemnifying Party, it's employees, any subcontractor, supplier or person or
entity over which
it controls or exercises control over (collectively, "Claims"); provided, that the
Party shall have
no obligation to indemnify for any Claims to the extent caused by or arising from the negligence
misconduct of any Indemnitee and provided further that "Claims", for purposes hereof,
compensation or benefits payable under any insurance policies, workers' compensation acts,
acts, or other employees' benefit acts.
Seller shall indemnify, defend and hold harmless the Indemnitees from and against all claims,
liens, causes of action, suits, judgments and expenses (including but not limited to reasonable
to the extent arising from any claims made by third parties that the use or sale of the
Materials infringes any
United States patent covering the Materials. Provided, however, this paragraph will not apply in
the event that
the infringement results from use of the Materials in combination with other materials, goods,
- ASSIGNMENT. Neither party shall assign this Agreement or any interest herein
without the prior
written consent of the other party, and any attempted assignment, whether by operation of law or
shall be void without such prior written consent.
- NOTICE. Any notice required to be sent to Seller shall be in writing and sent
Mail, postage prepaid, to the Seller's office set forth on the Quotation, or as specified in the
paragraph in this Agreement, with a copy to Seller, 5 Concourse Parkway, Suite 1900, Atlanta,
Attention: Legal Department. Any notice required to be sent to Purchaser shall be in writing and
Certified Mail, postage prepaid, to the Purchaser's office set forth on the Quotation.
- SEVERABILITY. If any term, provision, covenant, or condition of this Agreement
is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the
remain in full force and effect and shall in no way be affected, impaired, or invalidated. The
that each term and provision of this Agreement shall be construed according to its fair meaning
and not strictly
for or against any party.
- VENUE AND CHOICE OF LAW. The parties hereto agree that venue for any action
brought for the
breach of or the enforcement of this Agreement will lie in the county of the Project site
described in the
Quotation. This Agreement shall be governed by and shall be construed in accordance with the
laws of the state
of the Project site described in the Quotation, without regard to its conflicts of law
provisions. AS A MATERIAL
INDUCEMENT TO ENTER INTO THIS AGREEMENT, BOTH PARTIES WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
OUT OF OR RELATED TO THIS AGREEMENT.
- WAIVER. Failure or inability of either party to enforce any right hereunder
shall not waive any
right in respect to any other or future rights or occurrences.
- CORRECTIONS. Seller reserves the right to correct typographical or clerical
errors appearing in
the Quotation or other documents constituting the Agreement.
Effective August 2022
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