SALES AGREEMENT AND LIMITED WARRANTY
- 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”). This Agreement constitutes the exclusive and complete terms of the Contract. The Contract between ABS and you (“Buyer” or “You”) does not create a third-party beneficiary agreement. No general contractor, owner, or other third party may rely upon performance of the Contract. The subject of the Contract is the sale of doors, windows, and related construction materials (“goods”) by ABS to Buyer. ABS will order the goods from a third-party manufacturer (“Manufacturer”). The order will require that the goods be manufactured to the specifications included in the Contract. Some or all of the goods may have to be custom manufactured to meet Buyer’s specifications.
- PAYMENT, SERVICE CHARGES, AND DEFAULT. For Your protection, do not make a deposit or other payment in cash. Make all checks payable exclusively to Associated Building Supply, Inc. No ABS employee is authorized to accept payment by cash and you will not be given credit for any cash payment or for any check made payable to anyone other than Associated Building Supply, Inc. 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. If the Contract allows delivery before payment in full, or if any check is returned unpaid, the sale shall be deemed a credit sale. If any payment is not made when due, Buyer shall pay interest at the rate of 1.5% per month on such past due payment. If Buyer fails to make a payment within 30 days after the due date, the payment must be delivered to ABS at 4025 Spencer Street, Suite 205, Torrance, CA 90503. If Buyer fails to make any payment when due, ABS may suspend any performance due on its part with respect to the Contract.
- BUYER WAIVES CLAIMS FOR DELAYS AND FOR ECONOMIC DAMAGES.
- 3.1 Delivery Dates Are Estimates And Delays Are Foreseeable. It is foreseeable that some of the Products delivered by ABS may be incomplete, damaged, non-conforming, defective, or fewer than the number ordered (collectively, “Defective” or “Defect(s)”). Therefore, all delivery dates quoted or given by ABS are estimates only; ABS makes no representation or promise that Defect-free Products will be ready for delivery by the estimated or quoted dates.
- 3.2 Buyer’s Duty To Inspect. Buyer represents and warrants that it will: (i) thoroughly inspect the Products promptly after delivery; (ii) not install, or attempt to repair, any Products thought to be Defective without ABS’s prior written consent; and, (iii) give ABS and or the manufacturer a reasonable opportunity to inspect, repair, and replace the Defective Products before Buyer installs or sells them. Buyer assumes all risk of delays.
- 3.3 Buyer Waives Claims For Delay Damages. BUYER HEREBY WAIVES AND RELEASES ABS FROM ALL CLAIMS FOR DELAY DAMAGES.
- 3.4 Buyer Waives Claims For Economic Damages. BUYER HEREBY WAIVES AND RELEASES ABS FROM ALL CLAIMS FOR ECONOMIC DAMAGES, including delay damages, even if ABS is aware of or is advised in advance of the possibility of such damages and/or even if such damages are a result of ABS’s mistake or negligence. The term “economic damages” as used herein includes, but is not limited to: (i) damage to other property; (ii) loss of use of property; (iii) the cost to remove Defective Products; (iv) the cost to install any materials or Products to replace Defective Products; (v) the cost to repair any damages caused by the removal of Defective Products or by the replacement of Defective Products; (vi) loss of actual or anticipated earnings, profits, or revenue; (vii) damage to reputation; (viii) liquidated damages; (ix) back-charges for liquidated or other damages; (x) loss of business or employment opportunities; (xi) overhead and overtime expenses; and, (xii) any special, economic, or incidental loss or damage however caused including damages incurred because ABS did not deliver the Products within the time they were needed by Buyer.
- 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, all documents specifically included in the Contract by reference, and any other document in writing signed by the party against whom enforcement is being pursued. This Agreement is one of documents included in the Contract by reference. The provisions of this Agreement and the other 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 interest for the goods at the rate of 1.5% per month from the date the goods were ready for delivery.
- PRICE INCREASE. If Buyer’s contract with ABS requires shop drawings and specification work, the contract price is subject increases imposed by the Manufacturer. Because of supply chain volatility, price increases for glass, aluminum, steel, wood, freight, labor etc., the Manufacturer may increase its prices to ABS during a shop drawing review period. The shop drawing review period may take many months to complete. It is only after the shop drawings are signed and approved by the Buyer that ABS can release its order to the Manufacturer and the Manufacturer can begin production. It is between the time that Buyer signs the contract and the time that ABS authorizes production that the Manufacturer has the right to raise its prices to ABS. If, during that time, the Manufacturer does raise its prices, ABS will notify the Buyer of the price increases and include a copy of the Manufacturer’s written price-increase notice. The Contract price shall be increased by the same percentage as the Manufacturer’s percentage increase and the sales tax shall be adjusted to account for the automatic Contract price increase.
- DELIVERY. Deliveries are “tailgate” only. Buyer must pay for and provide labor to off-load the goods from the delivery truck. 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 damage, 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.
- 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 claim, 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 any item giving rise to any claim and all claims.
- RETURNS. All sales are final. Custom goods specially manufactured to Buyer’s specifications may not be returned for credit unless the goods fail, in a material way, to conform to the Contract specifications.
- LIMITED WARRANTY. THE GOODS ARE SOLD AS IS EXCEPT FOR CLAIMS BASED UPON THE MANUFACTURERS’ WARRANTIES. 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.
- 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 or non-conforming goods without any obligation to remove or pay the cost of removal of the allegedly defective or non-conforming goods or to pay for installation of the replacement goods, or to pay for any damages caused by the removal of the allegedly defective or non-conforming goods; or (c) the cancellation of the contract, Buyer’s return of the goods in question to ABS (if the goods were delivered to Buyer), and ABS’ refund of any payments made by Buyer to ABS for the goods (except that a refund shall not be required to cancel the contract if ABS assigns its contract claim for a refund as set forth below. 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 or offset against ABS and/or the Manufacturer. 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; the cost of purchasing replacement goods; damage to other goods or to structures; 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. If the Manufacturer fails to manufacture and deliver the goods to ABS, for any reason, and the Manufacturer refuses or fails to return any deposits and advance payments, ABS shall assign, to Buyer, ABS’ contractual right to recover Buyer’s deposits and advance payments given to the Manufacturer by ABS. For example: If Buyer chooses windows manufactured by XYZ and XYZ requires a deposit of $10,000 and ABS requires an advance payment from Buyer of $11,000 ($10,000 for XYZ and $1,000 for ABS for shop drawings or other services), and ABS prepares the shop drawings and gives a $10,000 deposit or advance payment to the Manufacturer to produce the windows, but the Manufacturer fails to manufacture the windows and fails to return the $10,000, ABS shall assign its contract with the Manufacturer to Buyer so Buyer will have the direct legal right to recover the $10,000 deposit from the Manufacturer. ABS’ sole liability to Buyer, with respect to deposits and advance payments, shall be to assign its contract with the Manufacturer to Buyer, if the Manufacturer fails to manufacture the goods or fails deliver them to ABS and also refuses to refund all advance payments it received from ABS with respect to the goods.
- ATTORNEYS FEES AND VENUE. In any action by ABS against Buyer to recover payment for goods sold by ABS to Buyer, the prevailing party shall be entitled to attorneys’ fees in the amount 33.3% of the claim. 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 which may be more or less than 33.3% of the claim. 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 [in the Chatsworth Courthouse or in the 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.
- 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.
- SECURITY INTEREST. Buyer hereby a security interest grants to ABS in all goods (and the proceeds from goods) purchased by Buyer from ABS. Buyer also grants ABS an additional security interest in all business accounts receivable, inventory, equipment, and cash accounts of Buyer 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.
- 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.
- 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. There are no collateral verbal agreements between ABS and Buyer. In the event that any provision in this Agreement is inconsistent or in conflict with the provisions in the Contract, the conflicting or inconsistent provision in the Contract shall be controlling.
- 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.
- COLLATERAL RECOVERY. If ABS successfully asserts a claim against a third party on a mechanic's lien, stop notice, payment bond, or other statutory remedy, ABS shall credit Buyer’s account only with the net amount recovered by ABS after deduction of all costs, actual attorneys’ fees, and interest. Furthermore, if ABS is unsuccessful in its attempt to recover from a third-party collateral source, ABS’ reasonable costs and attorneys’ fees may be added to Buyer's account, if the lack of success was due in part or in full to Buyer’s failure to help ABS prove that the goods purchased from ABS were used on the job for which Buyer purchased the goods or because Buyer misrepresented any material fact to ABS. In any mechanic’s lien, stop notice, payment bond action, or other statutory remedial action against third parties, all of ABS’ invoices shall be deemed due within 30 days of the date of the invoice, notwithstanding any contractual provision to the contrary.
- SPECIFICATIONS OF GOODS. ABS’ sole obligation with respect to the design specifications of the goods is to have them manufactured in accordance with the specifications included in the Contract Documents. If the Contract Documents are missing some specifications needed by the Manufacturer to manufacture the goods (“Missing Specs”), ABS may provide, at its sole discretion, the Missing Specs to the Manufacturer 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 the President of ABS and Buyer (or by someone with Buyer’s 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.
- 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 Agreement.
- CAPTIONS AND INTERPRETATIONS. The paragraph titles, headings or captions are inserted in this Agreement as a matter of convenience for anyone reading this Agreement. They may not describe the full scope of any provision and they should not be interpreted to limit or negate any provisions thereunder. There is no substitute for carefully reading this entire Agreement and/or for seeking legal advice with respect to it.
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