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ABSi SALES AGREEMENT AND LIMITED WARRANTY

SALES AGREEMENT AND LIMITED WARRANTY

 

1. SOLE & EXCLUSIVE SALES AGREEMENT. This Sales Agreement and Limited Warranty (“Agreement”) is included by reference in your signed contract (“Contract”) with Associated Building Supply, Inc. (“ABS”) and this Agreement constitutes the exclusive and complete terms of the Contract. The Contract between ABS and you (“Buyer”) shall not create a third party beneficiary agreement. No general contractor, owner, or other third party may rely upon performance of the Contract.

2. PAYMENT, SERVICE CHARGES, AND DEFAULT. Final payment of any unpaid balance of the Contract price is due and payable upon delivery and before the truck is unloaded unless other payment terms are specified in the Contract. Payment by cashier’s check may, in ABS’ sole discretion, be required. In the event that ABS allows delivery before payment in full, or in the event that any check is returned unpaid, the sale shall be deemed a credit sale. If any payment is not made when due, Buyer shall pay a time-price differential, sometimes called “service charges”, on any balance not paid when due. The time price differential rate shall be 1.5% per month. If Buyer fails to make a payment within 30 days after the due date, the payment must be delivered to ABS at 23961 Craftsman Road, Suite# B Calabasas, CA 91302. If Buyer fails to make any payment when due, ABS shall, at ABS’ sole option, be relieved from further performance of any and all Contracts with Buyer.

3. DELAYS & CHANGES. Any and all delivery dates and estimated lead times specified in the Contract or provided by ABS after execution of the Contract are estimates only. Buyer is cautioned to make allowance for delays and Buyer agrees that ABS shall not be liable to Buyer, nor to anyone else, for delays.

4. QUOTATIONS & PROPOSALS. No verbal or written quotation or proposal shall be binding unless it is included in the Contract Documents. The term “Contract Documents” means the signed Contract itself and all documents specifically included in the Contract by reference such as this Agreement. The provisions of this Agreement and the Contract Documents shall constitute the sole, exclusive and entire agreement. If Buyer does not take delivery of goods manufactured specifically for Buyer within 10 days of the day that they are ready for delivery, Buyer shall pay reasonable storage fees for the goods and pay service charges for the goods at the rate of 1.5% per month from the date the goods were ready for delivery.

5.   DELIVERY. Deliveries are “tailgate” only. Labor to off-load from the delivery truck must be provided by Buyer at Buyer’s expense. However, if at the time of delivery, Buyer has failed to provide a sufficient number of willing and readily available people to unload the goods, ABS may unload the goods, or participate in the unloading of the goods. Buyer assumes all risk of damge, theft, shortage, or any other loss to the goods the moment that any party, including an ABS employee, begins removing the goods from the delivery truck. Buyer waives all claims based upon damage, shortage, or theft of the goods as soon as the unloading begins.

6. CLAIMS PROCEDURE. Buyer’s failure to strictly comply with the claims procedure set forth in this section shall be a complete waiver and bar to any claim or to any set-off against ABS, unless ABS acknowledges, in writing, the timely receipt of the claim. Buyer must make any claim for shortage, defect, nonconformity, damage, non-delivery, or for any other reason, to ABS, in writing, by certified return receipt requested mail, within ten days of the date Buyer discovered or could have reasonably discovered the problem, but in no event later than 30 days from the date the goods were delivered (or, in the case of claimed non-delivery, within 30 days of the date ABS requests payment for the goods). Buyer must prove that it gave timely notice by producing a post office proof of delivery to ABS at the address given for ABS in the Contract. Claims for breakage or shortages must be noted by Buyer on the delivery ticket at the time of receipt/delivery. ABS may respond to one or more verbal claims or untimely claims without waiving the requirement of strict compliance with all of the claims procedures in this section, for that claim or for any other past, present or future claim. Any suit against ABS must be filed within one year after the delivery by ABS of the specific goods giving rise to the claim.

7. RETURNS. All sales are final. Goods specially manufactured for Buyer may not be returned for credit unless the goods fail, in a material way, to conform to the Contract specifications.

8. LIMITED WARRANTY. THE GOODS ARE SOLD AS IS EXCEPT FOR MANUFACTURERS’ WARRANTY CLAIMS. ABS’ sole obligation to Buyer is to assist Buyer in presenting its warranty claims to the manufacturer. ABS’ sole liability with respect to the condition of the goods sold to Buyer is limited to the adjustment, if any, provided by the manufacturer of the defective or damaged goods. Except as to title, there are no other warranties, written, oral, or implied, with respect to the goods. Buyer waives all claims based upon implied or statutory warranty of merchantability or fitness for a particular purpose.

9. LIMITATIONS OF LIABILITY. ABS’ liability to Buyer, whether arising out of or related in any way to any contract, negligence, strict tort, warranty, statute or any other legal basis for liability, shall be limited to ABS’ choice of any one of the following: (a) the repair of goods by ABS or the Manufacturer; (b) the replacement of the allegedly defective goods exclusive of the cost of removal and installations; or (c) the cancellation of the contract, Buyer’s return of the goods in question to ABS, and ABS’ refund of any payments made by Buyer to ABS for the goods. These remedies are exclusive, and Buyer waives all other remedies and claims. Buyer’s failure or refusal to give ABS a reasonable opportunity to inspect and repair defective goods shall be a complete bar to any claim against ABS. In addition, ABS shall not, under any circumstances, be responsible for special, economic, consequential or incidental damages such as, but not limited to: loss of profits, revenue, good will, business opportunity, or reputation; loss of purchased or replaced goods; damage to other goods; labor expenses; or damages caused by delays, back-charges, or loss of use. Risk of loss shall transfer to Buyer upon delivery of goods to Buyer’s place of business, to Buyer’s employees or agents, to a job site, or to any other location specified by Buyer.

10. ATTORNEYS FEES AND VENUE. In any action by ABS to recover payment for goods sold by ABS to Buyer, the prevailing party shall be entitled to attorneys’ fees in the following amount: (i) 40% (but not less than $1,500.00) of the claim, if the claim is $10,000.00 or less; or (ii) 33.3% of the claim, if the claim is over $10,000.00. However, if the Buyer files an Answer (even if the Answer is allowed to be filed by the Court after a default has been entered and/or even if the Answer is ultimately stricken), the prevailing party shall be entitled to reasonable attorneys’ fees to be determined by the Court. In addition, the successful party shall be entitled to request and receive post judgment collection costs and attorneys’ fees, whether the judgment awarding attorneys’ fees was based on the percentage formula or on the reasonable attorneys’ fee provision.
                Any suit, whether arising from contract, tort, or otherwise, must be brought in the Los Angeles Superior Court [Chatsworth Courthouse or Central District], or in the Federal District Court in Los Angeles. This Agreement shall be construed and enforced in accordance with the laws of the State of California.

11. AUTHORIZATION TO SIGN THE CONTRACT.  Each individual who signs the Contract represents and warrants that he/she has the authority to sign the Contract on behalf of his/her respective company.

12. SECURITY INTEREST. Buyer hereby grants to ABS a security interest in all goods (and the proceeds from goods) purchased by Buyer from ABS. Buyer also grants ABS an additional security interest in all accounts receivable, inventory, equipment, and cash accounts on the condition that ABS shall not perfect this additional security interest unless and until Buyer’s indebtedness to ABS includes at least $20,000 of indebtedness that is more than 60 days past due.

13. SEVERABILITY. If any part of this Agreement is held invalid or unconscionable, that part shall be fully severable, and the remaining provisions shall remain in full force and effect.      

14. ENTIRE AGREEMENT. The Contract Documents constitute the entire and exclusive understanding between Buyer and ABS and supersede all prior written or oral representations, warranties, statements, promises and understandings, and may not be modified or terminated, except by a document, in writing, signed by the party against whom enforcement is sought. Neither Buyer nor ABS has made any promises or representations to induce the other to enter into the Contract Documents. Neither Buyer nor ABS is relying upon any promise or representation not contained in the Contract Documents. The Contract Documents constitute the entire understanding between Buyer and ABS, and supersedes all prior oral representations, warranties, statements, promises and understandings with respect to the subject matter of the Contract Documents and may not be modified or terminated, except by a document, in writing, signed by Buyer and ABS. In the event that any provision in this Agreement is inconsistent or in conflict with the provisions in the Contract Documents, the conflicting or inconsistent provision in the Contract Documents shall be controlling.

15. WAIVERS. ABS may delay exercising or may omit to exercise any right or remedy without waiving that or any other past, present or future right or remedy. ABS’ consistent waiver of any right or remedy shall not modify the terms of this Agreement, nor establish a "course of dealing" which could be construed as a waiver of any of the provisions of this Agreement.

16. COLLATERAL RECOVERY. If ABS seeks to recover payment from a collateral source (for example, against the owner of real property on a Mechanic’s Lien claim), ABS shall only be required to credit Buyer’s account the net amount recovered after deducting costs and actual attorneys’ fees incurred. Furthermore, in the event that ABS is unsuccessful in its attempt to recover from a collateral source, ABS’ reasonable costs and reasonable attorneys’ fees incurred in the unsuccessful attempt shall be added to Buyer’s account.

17. SPECIFICATIONS OF GOODS. ABS’ sole obligation with respect to the design specifications of the goods is to manufacture them in accordance with the specifications included in the Contract Documents. If the Contract Documents are missing some specifications needed to manufacture the goods (“Missing Specs”), ABS shall provide, at its sole discretion, the Missing Specs and shall not be liable for any damages if its choice falls within the range of specifications allowed by applicable building codes and statutes. ABS shall not be liable for any damages if the specifications in the Contract do not conform or comply with the owner’s/architect’s specifications, building codes, and any applicable statute including but not limited to the ADA. Any changes to the specifications in the Contract Documents must be in writing, signed by both individuals who signed the Contract (or by someone with ostensible authority), and must state that there is either no change in price or state the amount of the increase or decrease in price. Specifications cannot be changed once the manufacturer places ABS’ order into production.

18. INDEMNIFICATION. Buyer shall defend, indemnify, and hold ABS harmless from and against any and all claims by third parties for delays or other damages that are excluded or limited by this Agreeement.

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