Terms and Conditions
1.Terms & Conditions. These Terms & Conditions (“Terms”) govern the sale of Products by L&W Supply Corporation and/or its affiliated, parent and subsidiary companies (collectively, “L&W”). “Products” means the products identified on the “Delivery” or “Pick Ticket” (“Ticket”) issued by L&W to customer (“Customer”). The person signing the Ticket on behalf of Customer represents and warrants to L&W that he or she is authorized to do so and that these Terms shall be binding upon Customer. These Terms, the other terms specified by L&W on the Ticket, and the terms of the Credit Agreement between L&W and Customer, if applicable, represent the final and complete agreement of L&W and Customer as to the sale and purchase of Products and no other terms or conditions adding to or modifying the same shall be binding upon L&W unless made in a writing signed by an authorized representative of L&W
2. Price and Payment. Customer shall pay in full for all Products on the due date specified on the invoice issued by L&W. No payments shall be subject to any setoffs, deductions or claims, unless agreed to in writing by L&W. Regardless of any statement appearing on a check or otherwise, any amount received by L&W may be applied against any amount owing by Customer in L&W’s discretion, and L&W’s acceptance of a payment in an amount less than that due shall in no way be an accord and satisfaction or prejudice L&W’s rights and remedies to collect the full amount due. Time is of the essence to Customer’s obligation to make payments to L&W. Prices do not include any sales taxes or other charges levied by any governmental authority upon the sale, use or transportation of the Products, all of which shall be paid by Customer.
3. Shipping/Title/Risk of Loss. All Products will be either (a) tendered to Customer or to Customer’s carrier at: (a) L&W’s or manufacturer’s warehouse designated on the Ticket or (b) delivered to the “SHIP TO” location specified on the Ticket. Title and risk of loss of Products tendered at L&W’s or manufacturer’s warehouse shall transfer when the Products are loaded onto Customer’s or Customer’s carrier’s trucks. Title and risk of loss to Products delivered to the “SHIP TO” location specified on the Ticket shall transfer either at the time the Products arrive curbside at the “SHIP TO” address before unloading, spreading or stocking or, if the Ticket specifies that L&W shall supply unloading, spreading and/or stocking services, at the time the Products are so unloaded, spread and/or stocked. Any handling of the Products after such transfer of title and risk of loss shall be at Customer’s sole risk. In the event of delivery to a “SHIP TO” address, Customer represents and warrants to L&W that Customer has the right to permit the necessary access to make delivery of the Products and hereby grants to L&W and to L&W’s carrier a license for such purpose. L&W shall retain a Uniform Commercial Code purchase money security interest in the Products until final payment is received. Dates of shipments are estimated and not guaranteed
4. Product Inspection; Non-conformity. Customer must inspect the Products within 48 hours after delivery and notify L&W in writing of any damage or non-conformity. Failure to make inspection and deliver written notice of damage or non-conformity within such 48 hour period shall constitute irrevocable acceptance of the delivered Products and a waiver of any damage or non-conformity. As Customer’s sole remedy for any damaged or non-conforming Products of which Customer has delivered to L&W timely notice, L&W, at L&W’s election, shall either: (a) replace the damaged or non-conforming Products or (b) refund the price paid by Customer to L&W for such damaged or non-conforming Products.
5. Cancellations; Returns. If Customer fails to make payment in accordance, or otherwise comply, with these Terms or any other agreement between Customer and L&W, L&W may, at its option (and in addition to other remedies) cancel any unshipped portion of Customer’s order, without liability to L&W and with Customer to remain liable for all unpaid amounts. Subject only to Section 4 above, Products cannot be returned, and orders, once accepted by L&W, cannot be cancelled without L&W’s prior written consent, which may be granted or withheld in L&W’s sole and absolute discretion. All Products accepted by L&W for return and refund are subject to a restocking fee of 20% of the price of cancelled or returned Products plus all shipping costs. In the case of cancellation of orders of special or non-stock Products, Customer’s cancellation may be conditioned upon Customer’s payment in full of the price of finished Products and, for other Products in process of manufacture, the payment of a cancellation charge based on the percentage of completion as applied to the price.
6. WARRANY AND DAMAGES DISCLAIMER. L&W does not manufacture the Products. In the event the Products are warranted by the manufacturer, L&W will, to the extent permissible, pass through any such warranty, but L&W is not responsible for manufacturer’s warranties. Products are sold “AS IS” and L&W does not make and EXPRESSLY disclaims any and all representations, warranties and guaranties of any kind, WHETHER EXPRESSED OR IMPLIED, AS TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO, implied warranties of fitness for a particular purpose OR MERCHANTABILITY. Recommendations, advice, representations, warranties, commitments or agreements given or made by any person, including employees or representatives of L&W, that are inconsistent with the foregoing disclaimer shall not be binding upon L&W, unless in a writing signed by an authorized representative of L&W. L&W’s only obligation is to provide the Products ordered by Customer (which order is accepted by L&W) without regard to the Products’ appropriateness to Customer’s application. Customer represents and warrants that (a) it will use all Products for business purposes and not for personal, household or family uses, and (b) Customer is not a “consumer” as defined by any applicable federal or state usury or consumer protection laws. IN NO EVENT SHALL L&W BE LIABLE FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR SIMILAR DAMAGES OF ANY KIND.
7. Release/Indemnification. Customer: (a) on behalf of itself and its insurers and its and their respective successors and assigns, hereby waives all liabilities, losses, claims, damages, penalties, actions, lawsuits, judgments, costs and expenses of any kind (including attorneys’ fees) arising out of or related to: (i) the unloading, spreading, stocking or storage of the Products (except when L&W is providing such services), (ii) the possession, use or installation of any Products, or (iii) any re-sales of Products by Customer to a third party (“Claims”), against L&W and its agents, officers, employees, representatives and contractors and all of their respective successors and assigns (“L&W Parties”), and (b) shall indemnify, defend and hold L&W Parties harmless against and from all Claims.
8. Notice of Damage. Any claims for damage to property must be reported to L&W within 5 days after the damage occurs. Claims against L&W for damages shall be deemed waived unless an authorized L&W representative has the opportunity to inspect the damaged property before repair.
9. Force Majeure. Delay in delivery or non-delivery, in whole or in part, by L&W shall not be a breach or default by L&W if performance is delayed or made impracticable by the occurrence of any one or more of the following: (a) fires, floods, or other casualties, (b) wars, riots, embargoes, governmental regulations or martial law, (c) inability to obtain necessary materials from usual sources of supply, (d) shortage of transportation or delays in transit, (e) strikes or other labor troubles, and (f) other conditions not reasonably within L&W’s control, whether or not of a kind mentioned herein.
10. Choice of Law and Jurisdiction. These Terms shall be governed by the laws of the State of Illinois, without regard to its choice of law provisions. Any controversy or claim arising out of or relating to these Terms shall be settled by final and binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator and conducted in English. The arbitration shall be in a city with a population of 250,000 or more closest to Customer’s principal office address. If a controversy or claim relates to or is the subject of a mechanic’s or construction lien, L&W may proceed in accordance with applicable law to preserve and enforce its lien rights.
11. Miscellaneous Provisions. Customer shall pay to L&W all costs of collection, including, without limitation, reasonable attorneys’ fees, incurred by L&W in collecting any money due from Customer and enforcing L&W’s lien rights. The unenforceability or invalidity of any one or more portions of these Terms shall not render any other portion unenforceable or invalid, which remaining portions shall continue in full force and effect. No waiver by L&W of any term or any obligation of Customer shall constitute a waiver of any other term or obligation. Customer shall not assign or transfer its rights or obligations under these Terms without the prior written consent of L&W. All of Customer’s representations, warranties and indemnities under these Terms shall survive the consummation of or termination or cancellation of any purchase and sale of Products. Which party prepared these Terms shall have no bearing on their construction.