CAPITALPLUS SUPPLY CHAIN PARTNERS, LLC
TERMS AND CONDITIONS (1st Ed., 10-1-20)
NOTICE: The sale of any Products is expressly conditioned on Buyer’s assent to the following terms and conditions (“Terms and Conditions”). Any acceptance of Seller’s offer is expressly limited to acceptance of these Terms and Conditions and Seller expressly objects to any additional or different terms proposed by Buyer. No Buyer form shall modify these Terms and Conditions, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of these Terms and Conditions. Any order to purchase products shall constitute Buyer’s assent to these Terms and Conditions. Unless otherwise specified in the quotation, Seller’s quotation shall expire thirty (30) days from its date and may be modified or withdrawn by Seller before receipt of Buyer’s conforming acceptance.
“Buyer” means the entity to which Seller is providing Products under the Contract.
“Contract” means either (a) the contract agreement signed by both parties, (b) the purchase order signed by Buyer and accepted by Seller in writing for the sale of Products, together with these Terms and Conditions, or (c) the sales order signed by Buyer and accepted by Seller in writing for the sale of Products, together with these Terms and Conditions, or (d) the Purchase Agreement signed by Buyer and accepted by Seller in writing for the sale of Products, together with these Terms and Conditions, all of which shall constitute the entire agreement between Buyer and Seller relating to the subject matter hereof, and shall supersede all prior and contemporaneous discussions, understandings, and agreements related to the subject matter hereof. In the event of any conflicting terms, the Terms and Conditions shall take precedence over all other documents included in the Contract.
“Purchase Amount” means the agreed price stated in the Contract for the sale of Products, including adjustments (if any) in accordance with the Contract.
“Products” means the equipment, parts, materials, supplies, and other goods Seller has agreed to sell to Buyer for commercial use under the Contract.
“Seller” means CapitalPlus Supply Chain Partners, LLC, a Tennessee limited liability company with principal offices located at 2510 Solway Road, Knoxville, Tennessee 37934. Seller is the entity which is selling the Products to Buyer pursuant to the terms of this Contract.
“Project Site” means the location of the Project, identified in the Contract for sale of Products.
2. Delivery and Shipping Terms
(a) Seller shall deliver Products to Buyer F.O.B. shipping point. Buyer shall pay all delivery costs and charges or pay Seller’s standard shipping charges plus handling. Partial deliveries are permitted. Seller may deliver Products in advance of the delivery schedule. Delivery times are approximate and are dependent upon prompt receipt by Seller of all information necessary to proceed without interruption. If Products delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Buyer shall so notify Seller within three (3) days after receipt, and Buyer’s failure to timely notify Seller shall constitute a waiver thereof. Subject to Section 2(c), the Products will only be delivered to the Project Site.
(b) Title to Products shall pass to Buyer upon delivery in accordance with Section 2(a). (c) Risk of loss shall pass to Buyer upon delivery pursuant to Section 2(a).
3. Representations of the Buyer. The Buyer represents and warrants to the Seller that:
- the Products are entirely for use in connection with the Project listed in the Purchase Order; and
- the Buyer is the owner, general contractor or a first-tier subcontractor to the Project.
These representations and warranties constitute a material inducement for the Seller to enter into the Purchase Order.
4. Cancellation of Purchase Order. Buyer may cancel its order only with the prior written consent of Seller, which Seller may withhold in its sole discretion. All cancelations will be subject to payment to Seller of reasonable and proper cancelation charges. Buyer may return Products only at its sole cost and only with the prior written authorization of Seller. No returns of special, custom, or made-to-order Products will be permitted.
5. Grant of Security Interest. Title and risk of loss passes to Buyer pursuant to the terms of Section 2. As collateral security for the full payment of the purchase price of the Products, Buyer hereby grants to Seller a security interest in the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest pursuant to the Tennessee Uniform Commercial Code (T.C.A. Section 47-9-101 et seq.). Seller shall have the right to sign and file any and all documents in Buyer’s name and take any action it deems necessary to fully establish its security interest in the Products and the perfection thereof; however, the failure of Seller to file any such document shall not constitute a waiver of Seller’s right to such security interest.
6. Assembly, Installation, Set-Up. In no event will Seller be responsible for the assembly, installation or set-up of the Products or the cost thereof.
7. Purchase Amount.
(a) Buyer shall purchase the Products from Seller at the Purchase Amount.
(b) All Purchase Amounts are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes.
(c) The Purchase Amount excludes shipping and handling charges, which are the obligation of Buyer and will be added to the invoice if prepaid by Seller.
(d) Buyer agrees to treat all monies received on account of the Purchase Amount in accordance with the trust fund provisions of the Lien Law of the State where the Project is located, if any. If no such Lien Law exists in the State where the Project is located, Buyer agrees to treat all monies received on account of the Purchase Amount in trust for the exclusive use of payment of the Purchase Amount.
8. Payment Terms.
(a) Terms of payment are net cash due upon receipt of the invoice.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of .5% per week or the highest rate permissible under applicable law, which shall begin to accrue on the 31st day after the date of the invoice. Buyer shall reimburse Seller for all costs incurred in collecting any unpaid amounts owing by Buyer to Seller, including, without limitation, reasonable attorneys’ fees and court costs. In addition to the remedies available under these Terms and Conditions, Seller may pursue any other remedies available to it in law and equity, and Seller’s pursuit of one or more remedy shall not preclude it from pursuing any other available remedy. Moreover, Seller shall be entitled to suspend the delivery of any undelivered Products if Buyer fails to pay any amounts when due hereunder for previously delivered Products on the date such payment was due.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
9. Disclaimer of Warranties. The Buyer acknowledges and agrees that the Seller has absolutely no responsibility or liability in connection with the Products. The Products are not manufactured by Seller, and all Products are sold AS IS AND WITH ALL FAULTS. The only warranties are those provided by the manufacturer of the Products, if any, which shall be Buyer’s sole and exclusive warranties. SELLER MAKES NO WARRANTY WITH RESPECT TO THE PRODUCTS, AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COURSE OF PERFORMANCE, COURSE OF DEALING, AND USAGE OF TRADE. The Seller does not assume any obligation to assist the Buyer with the prosecution of any warranty claims against the manufacturer or lower tier supplier.
10. Limitation of Liability and Damages.
(a) Inasmuch as Seller is not the manufacturer of the Products, Buyer releases Seller of and from all claims and causes of action (i) regarding any alleged defect in the Products, including but not limited to claims and causes of action brought in contract, tort (including negligence or strict liability), or otherwise; (ii) related to the inability or refusal of Seller’s suppliers to provide the Products; (iii) related to any claims that may be asserted by any third persons that the Products infringe on their patent, copyright, trademark or other intellectual property rights; or (iv) related to the failure of the Products to comply with any applicable laws and regulations.
(b) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(c) In no event shall Seller’s aggregate liability arising out of or related to this discrete Contract, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amount paid to Seller for the Products sold under this discrete Contract.
(d) The foregoing limitations are a material basis for the parties’ bargain and reflects the bargained-for allocation of risks between Seller and Buyer, without which Seller would not have agreed to provide the Products at the price charged.
11. Indemnification. Subject to Section 10 hereof, to the fullest extent allowed by law, Buyer shall indemnify and hold Seller harmless from all claims, actions, demands and costs, including but not limited to reasonable attorney’s fees, brought by a third party against Seller, which in any way relate to any of the Products or Buyer’s use thereof. Buyer also will indemnify Seller for any and all losses incurred by Seller arising out of Seller’s performance of this Contract.
12. Adequate Assurance. Seller reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance of performance from Buyer without liability to Seller in the event of: (i) Buyer’s insolvency, (ii) Buyer’s filing of a voluntary petition in bankruptcy, (iii) the appointment of a receiver or trustee for Buyer or (iv) the execution by Buyer of an assignment for the benefit of creditors. Seller reserves its right to suspend its performance until payment or adequate assurance of performance is received.
13. Termination. In addition to any remedies that may be provided under these Terms and Conditions, Seller may terminate this Contract with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Contract; (ii) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
14. Amendment and Modification. These Terms and Conditions may only be amended or modified in a writing which specifically states that it amends these Terms and Conditions and is signed by an authorized representative of each party.
15. Waiver. No waiver by Seller of any of the provisions of this Contract is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller, including but not limited to acts of God, flood, fire, earthquake, explosion, governmental orders, actions or directives, war, weather, natural occurrence, invasion or hostilities (whether war is declared or not), acts or omissions of the Buyer, shortages or delay of materials or transportation facilities, terrorist threats or acts, riots or other civil unrest, emergency, revolution, insurrection, illness, epidemic, pandemic, lockouts, strikes or other labor disputes, restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, telecommunication breakdown or power outage.
17. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. Any permitted assignment does not relieve Buyer of any of its obligations under this Contract.
18. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Contract shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19. Governing Law. All matters arising out of or relating to this Contract are governed by and construed in accordance with the internal laws of the State of Tennessee.
20. Submission to Personal Jurisdiction; Venue; Statute of Limitations on Actions Brought by Buyer.
(a) Seller may bring any legal suit, action or proceeding arising out of or relating to this Contract in the Circuit Court for Knox County, Tennessee, and Buyer expressly and irrevocably agrees that it is subject to the personal jurisdiction of such Court, and Buyer agrees that it will not remove the case to federal district court.
(b) Any legal suit, action or proceeding brought by Buyer arising out of or relating to this Contract shall be instituted solely and exclusively in the Circuit Court for Knox County, Tennessee, and Buyer expressly and irrevocably agrees that it is subject to the personal jurisdiction of such Court.
(c) Any action brought by Buyer against Seller, including but not limited to actions for breach of contract, must be commenced within one year after the cause of action accrues, and if not commenced within one year, the action is barred.
21. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Contract or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Contract, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
22. Severability. If any term or provision of this Contract is determined to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Contract.
23. Survival. The provisions of these Terms and Conditions will remain in full force after Buyer’s payment of all of its obligations hereunder.