CONSUMERS SUPPLY DISTRIBUTING, LLC (“CSD”) GENERAL TERMS & CONDITIONS OF SALE
1. Entire Agreement. These Terms and Conditions of Sale (the Terms), together with other sales terms, if any, agreed to by Buyer and CSD in a writing signed by both parties (Sales Terms), contain the entire and exclusive contract and agreement between the parties regarding the sale of each product and shall not be supplemented or amended except by separate written agreement signed by both parties. CSD expressly rejects terms and conditions additional to or varying from these Sales Terms, and any such additional or varying terms and conditions shall not be binding on CSD unless specifically agreed to in writing by CSD. CSD acceptance of acknowledgement of Buyer’s order or shipping instructions shall not constitute such written agreement. Any action by Buyer in furtherance of a sale or purchase of product and/or shipment of products by CSD to Buyer under these Sales Terms shall also constitute Buyer’s acceptance of these Sales Terms. All terms and conditions contained in any prior or subsequent oral or written communication concerning the sale of products to which this contract relates, including, without limitation, terms and conditions contained in Buyer’s purchase order, which are different from or in addition to the contract are hereby rejected and shall not be binding on CSD, and CSD hereby objects thereto.
2. Payment; Taxes. The price for product is the price in effect on the date of shipment, unless otherwise agreed by the parties. Payment for the full amount of each invoice shall be made to CSD pursuant to the terms contained on the invoice, in United States currency. Interest will be charged on unpaid balances that are not timely paid at the rate of 1.5% per month, but not to exceed the maximum rate allowed by law. The price for product is exclusive of any sales, use or other tax of levy imposed upon this sale. Such taxes shall be the Buyer’s sole and exclusive responsibility. All claims by Buyer shall be made by written notice to CSD in accordance with the provisions set forth below, and no offset or deduction from any invoice is permitted. Buyer shall be responsible to CSD for any costs associated with CSD’s collection efforts, including reasonable attorneys’ fees.
3. Breach; Termination; Waiver. If Buyer breaches any term of the contract or ceases to conduct its operations in the normal course of business, including inability to meet its obligations as they mature, and fails to cure such breach within ten (10) days, then CSD may defer performance under the contract until such breach has been cured. No waiver by CSD of any default or breach shall be deemed a waiver of any other prior or subsequent default or breach. In the event of a termination, all outstanding payment obligations or other indebtedness of Buyer to CSD shall be immediately due and payable. Acceptance by CSD of less than the full amount due shall not be a waiver of any of CSD’s rights under the contract or applicable law. Notwithstanding any provision in the contract, CSD shall have no obligation to pay any rebate, issue any credit or make any other payment of any kind to Buyer unless Buyer is fully in compliance with its payment and other obligations under the contract. In addition, if Buyer fails to make any payment when due, CSD shall have the right to offset any and all outstanding payment obligations or other indebtedness of Buyer to CSD against any outstanding payment obligations or other indebtedness that CSD may owe Buyer. If the credit of Buyer shall at any time, in the sole judgment of CSD, become impaired, CSD may at its option and without incurring any liability, divert or prevent the discharge of product shipments en route to Buyer and cancel the unfilled portion of the contract or require Buyer to give such security as CSD may specify to ensure payment or require payment in advance before making any further shipment. The election by CSD to act according to the foregoing shall not affect the obligation of Buyer to take and pay for contracted product.
4. Force Majeure; Allocation. CSD shall not be responsible for any delay or failure to make or deliver product due to any cause beyond its reasonable control, including without limitation (a) fire, storm, flood, strike, lockout, accident, act of war or terrorism, riot, civil commotion, embargo; (b) any regulation, law, order or restriction of any governmental department, commission, board, bureau, agency, court, or other similar governmental authority; or (c) inability of CSD to obtain any required raw material, energy source, equipment, labor or transportation, at prices and on terms CSD deems practicable from CSD’s usual sources of supply. Upon the occurrence of any such issue, CSD shall have the right to suspend or reduce deliveries during the continuation of such event and CSD shall have no liability to Buyer for any such delay in supply occasions by such suspension or reduction. CSD may allocate its available supply of product among its customers, itself, and its affiliates on such basis as CSD deems fair and reasonable if CSD is unable to supply the quantities of product.
5. Warranties. CSD WARRANTS THAT AT THE TIME OF DELIVERY (I) PRODUCT IS FREE AND CLEAR OF ALL LIENS, ENCUMBRANCES AND SECURITY INTERESTS; AND (II) PRODUCT COMPLIES WITH CSD'S PUBLISHED SPECIFICATIONS (OR AS OTHERWISE REFERENCED IN THE CONTRACT). CSD MAKES NO OTHER WARRANTY OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. BUYER SHALL INSPECT THE PRODUCT SUPPLIED HEREUNDER IMMEDIATELY AFTER DELIVERY. EXCEPT WITH RESPECT TO CLAIMS FOR SHORTAGES, BUYER'S FAILURE TO GIVE NOTICE TO CSD OF ANY CLAIM WITHIN THIRTY (30) DAYS AFTER THE DATE OF DELIVERY SHALL CONSTITUTE UNQUALIFIED ACCEPTANCE OF THE PRODUCT AND A WAIVER BY BUYER OF ALL CLAIMS WITH RESPECT THERETO. CLAIMS FOR SHORTAGES MUST BE RECEIVED BY CSD IN WRITING WITHIN FORTY-EIGHT (48) HOURS AFTER DELIVERY OF PRODUCTS. CSD SHALL BE GIVEN A REASONABLE OPPORTUNITY TO INSPECT ANY SHIPMENT CLAIMED BY BUYER TO CONTAIN A SHORTAGE. CSD MAKES NO WARRANTY OR GUARANTY, EITHER EXPRESS OR IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF TECHNICAL ADVICE FURNISHED OR RECOMMENDATIONS MADE BY CSD OR ITS REPRESENTATIVES CONCERNING ANY USE OR APPLICATION OF ANY PRODUCT OR OF THE RESULTS TO BE OBTAINED. WITH REGARD TO ANY HANDLING OF ANY PRODUCT, BUYER ASSUMES FULL RESPONSIBILITY FOR QUALITY CONTROL, TESTING AND DETERMINATION OF SUITABILITY OF PRODUCT FOR ITS INTENDED APPLICATION OR USE. ANY ATTEMPT TO REMEDY OR CORRECT A CLAIMED DEFECT BY PERSONS OR ENTITIES NOT AUTHORIZED TO PERFORM SUCH WORK BY CSD OR CONTINUED USE OF SUCH PRODUCT SHALL VOID THE PRODUCT WARRANTY SET FORTH ABOVE AND BUYER WILL BE DEEMED TO HAVE ACCEPTED THE PRODUCT AS IS, WITH NO FURTHER OBLIGATION OF CSD TO BUYER. IF REQUESTED BY CSD, BUYER SHALL RETURN NONCONFORMING PRODUCT TO CSD STRICTLY IN ACCORDANCE WITH CSD’S WRITTEN INSTRUCTIONS CONCERNING SHIPPING, HANDLING, INSURANCE, AND OTHER MATTERS AS TO WHICH CSD ISSUES INSTRUCTIONS. FAILURE TO COMPLY WITH THESE PROVISIONS SHALL INVALIDATE ANY CLAIM BY BUYER FOR BREACH OF WARRANTY.
6. Limitation of Liability. CSD'S TOTAL LIABILITY AND BUYER'S EXCLUSIVE REMEDY FOR ANY CLAIM OR LIABILITY ASSOCIATED WITH THE CONTRACT OR ANY PRODUCT, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY IS EXPRESSLY LIMITED TO, AT CSD'S OPTION, REPLACEMENT, REPAIR OR REWORK, AS APPLICABLE, OF NONCONFORMING PRODUCT OR PAYMENT IN AN AMOUNT NOT TO EXCEED, IN THE AGGREGATE, THE PURCHASE PRICE OF THE SPECIFIC PRODUCT FOR WHICH DAMAGES ARE CLAIMED. IN NO EVENT SHALL CSD BE LIABLE FOR ANY OTHER DAMAGES, LOSSES OR EXPENSES, INCLUDING, WITHOUT LIMITATION, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR SPECIAL DAMAGES OR DAMAGES, LOSSES OR EXPENSES ASSOCIATED WITH LOSS OF PROFITS, BUSINESS, CONTRACTS OR SAVINGS, LOSS OF GOODWILL, LOSS OF PRODUCTION, LOSS OF USE, BUSINESS INTERRUPTION AND ANY OTHER DAMAGES, LOSSES OR EXPENSES OF ANY KIND OR CHARACTER TO BUYER, ITS CUSTOMERS, OR OTHER PERSONS OR ENTITIES.
7. Limitation of Action. BUYER’S FAILURE TO COMMENCE ANY CAUSE OF ACTION EITHER RELATED TO ANY PRODUCT OR OTHERWISE ARISING UNDER THE CONTRACT WITHIN ONE YEAR AFTER THE DATE OF DELIVERY SHALL FOREVER BAR ALL RIGHTS OF BUYER TO COMMENCE ANY CAUSE OF ACTION WITH RESPECT THERETO NOTWITHSTANDING ANY APPLICABLE STATUTE OF LIMITATIONS.
8. Delivery; Title; Risk of Loss. Delivery and shipment dates indicated on any of CSD’s documents are estimated but not guaranteed and CSD will not be liable for any delay in delivery. Title to and risk of loss of product shall transfer to Buyer upon delivery to the carrier at CSD's shipping point; Buyer shall bear all risk of loss or damage in transit.
9. Confidential Information. All of CSD’s non-public, confidential or proprietary information, including but not limited to documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by CSD to Buyer, whether disclosed orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this agreement is confidential and may not be disclosed or copied unless authorized in advance by CSD in writing.
10. Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances and shall maintain in effect all licenses, permissions, authorizations, consents, and permits necessary to carry out its obligations under this contract.
11. Assignment; Survival. Buyer shall not assign all or any portion of the contract without CSD’s prior written consent. The contract shall bind and inure to the benefit of the successors and permitted assigns of the respective parties. In order that the parties may fully exercise their rights and perform their obligations arising under the contract, any provisions of the contract that are required to ensure such exercise or performance (including any obligation accrued as of the termination date) shall survive the termination of the contract.
12. Governing Law; Miscellaneous. The contract shall be governed by the laws of the State of South Dakota, USA, excluding its conflict of laws principles. The parties agree, consent and waive contest to the exclusive jurisdiction and venue of the federal or state courts of South Dakota for all disputes arising out of or relating to this contract. Failure of either party to exercise any right it has under the contract on one occasion shall not operate or be construed as a waiver by such party of its right to exercise the same right on another occasion or any other rights it has. Any waiver must be in a writing signed by the waiving party. If any provision of the contract shall be adjudicated to be invalid or unenforceable, it is the parties’ intent that the remaining provisions of the contract will remain in full force and effect, and the affected provision or portion thereof will be deemed modified so that it is enforceable to the maximum extent permissible to reflect as closely as possible the intentions of the parties as evidenced from the provisions of the contract. The terms of the contract are confidential, with the understanding that Buyer will not disclose such terms to any third party. The section headings used herein are intended for convenience of reference only and shall not be considered in interpreting the contract. Nothing in the contract shall be construed as creating any direct or beneficial right in or on behalf of any third party.
* Please note if at any time the US government changes tariffs on imported goods, CSD reserves the right to correspondingly adjust pricing on existing orders