Terms and Conditions of Sale and Warranty Information
1. Terms. These Terms and Conditions of Sale (“Terms”) constitute the complete agreement between the parties, to the extent not prohibited by applicable law. Acceptance of Purchaser’s order, all sales by Durável LLC (“Durável”), and Purchaser’s acceptance of products are conditioned on these Terms. Durável hereby rejects any and all terms and conditions of Purchaser, including any terms and conditions and/or modification of terms and conditions in Purchaser’s order, unless Durável agrees to such terms and conditions in writing.
2. Payment. Payment terms are net thirty days from the earlier of the date of shipment or the date of invoice, unless specified otherwise by Durável. Durável reserves the right, in its sole discretion, to require payment before shipment in the event that Durável determines that the Purchaser is delinquent in payment or will exceed its credit limit. Overdue accounts will be charged simple interest at the rate of 1.5% per month (18% per fiscal year) from the payment due date. Purchase will pay all costs of collection of monies owed to Durável, including reasonable attorney fees. Durável reserves the right to convert checks to Electronic Check (eCheck) for processing.
3. Credit. All orders are subject to approval. Durável shall have the right, at its sole discretion, to modify, change, or withdraw credit terms at any time without notice, and to request guarantees, security, or payment in advance for any order or from any Purchaser.
4. Delivery. Delivery terms are Freight on Board (FOB) the Durável plant, unless specified otherwise. For convenience, Durável may pre-pay shipping charges, and such charges will be added to the Purchaser’s invoice. Product orders may be shipped in part, and such partial shipments may be invoiced separately and paid for when due without regard to subsequent shipments. Delays in shipping or delivery of any portion of an order shall not relieve the Purchaser of its obligation to accept the balance of the order. All risk or loss of product damage in transit will be borne by the Purchaser, regardless of the party paying shipping costs, unless specified otherwise. Delivery dates are estimated when Durável accepts the Purchaser’s order. Durável will endeavor to make deliveries within a reasonable time, but such dates are estimates only and not a guarantee. Durável shall not be liable for any damages, whether incidental, consequential or otherwise, for failure to complete orders, delays in delivery of orders, or any errors in the filling of orders. Purchaser agrees that an order shall not be subject to cancellation in any event except by prior written consent of Durável, and only when Durável is fully reimbursed for all work performed, materials used, and/or materials ordered specifically for the Purchaser’s order and which cannot be returned.
5. Taxes. Any tax imposed by Federal, State, or other governmental authority on the sale of product and services shall be paid by the Purchaser in addition to the purchase price.
6. Returns. Product returns will not be accepted for replacement or credit without prior written authorization from Durável. Product returns will not be accepted beyond ninety days from the original ship date. A minimum twenty percent restocking fee will be applied to all returns. All returns must have shipping cost prepaid. Credit will be issued by Durável only after product is inspected. Product which is damaged, opened, or partially used will not receive credit. Custom product is not eligible for return.
7. Warranty. Durável’s Standard Warranty shall apply to all products, unless agreed to otherwise in writing.
8. Safety. Upon request by Purchaser, Durável will provide applicable information concerning the safety and health aspects of its products, including but not limited to Safety Data Sheets. Purchaser agrees to communicate all such information to Purchaser’s employees, contractors, customers, and any others that may come into contact with the product. Purchaser agrees to not hold Durável responsible for misuse of product. All responsibility to test compatibility of product is assumed by the Purchaser.
9. Indemnification. Purchaser assumes all risks and agreed to indemnify and hold harmless Durável against all claims and liability, including liability based on any claim that Durável is negligent or strictly liable, and including any claims from agents or employee of Purchaser, arising as a result of use or possession of product.
10. Delays. Neither party shall be liable to the other party or any other person for failure or delay in the performance of any obligation hereunder, except for payment obligations, due directly or indirectly to events beyond its reasonable control.
11. Entire Agreement. There are no terms or conditions regarding these Terms and Conditions which are not specified herein. These Terms and Conditions constitute the complete and exclusive agreement between the parties concerning the subject matter and supersede all prior statements, promised, and representations made by Durável which are not expressly stated herein.
12. Governing Law. All orders shall be governed by and construed in accordance with the laws of the State of North Carolina. All actions arising out of these Terms and Conditions shall be brought in the State of North Carolina.
13. Security. Durável reserves a security interest in any product sold to the extent of the invoiced amount to secure payment of the Purchaser’s obligation. If Purchaser defaults, it agrees to make the product available so that Durável may peaceably repossess. A copy of the invoice shall be accepted as a financing statement. At Durável’s request, Purchaser will execute any instrument Durável requires to perfect its security interest.
14. Nondisclosure. All non-public information provided by Durável to Purchaser (“Information”) shall be Durável’s exclusive property. Information shall be used by Purchaser only for installation of Durável products, kept confidential, and returned promptly at Durável’s request. Purchaser shall not disclose information to any third party without Durável’s consent. These obligations shall survive the cancellation, termination, and/or completion of the sale.
15. Intellectual Property. Durável retains its intellectual property rights, titles and interests in, and to trademarks, trade names, logos, copyrights, patent rights, trade secrets, and other proprietary rights (“Intellectual Property”). Purchaser obtains no license under Durável’s Intellectual Property other than as necessary to apply the products, or any rights to use, or to make any representations regarding, any of Durável’s Intellectual Property. Purchaser shall not disparage any of Durável’s Intellectual Property.
a. Assignment and Delegations: Purchaser will not assign any rights or delegate any duties under these Terms and Conditions without the written consent of Durável.
b. Statute Of Limitations: any action of any kind under this contract must be brought within one year of the date of delivery.
c. Modification and Termination: These Terms and Conditions shall not be modified or terminated unless expressly agreed by both parties in writing. No waiver or any default hereunder shall be deemed a waiver of the obligation of future compliance, and any provision waived shall remain in full force and effect. In addition to its other remedies, Durável may cancel any unfulfilled part of any product order without any liability and without notice if Buyer fails to pay amounts due or Purchaser shall become bankrupt, insolvent, makes an assignment for the benefit of creditors or a receiver is appointed for Purchaser, or Purchaser is acquired or sold in whole or in part.
d. Sole Agreement: Unless otherwise agreed in writing, this constitutes the entire agreement between Durável and Purchaser, and supersedes any previous agreement, representation or warranty, whether express or implied, regarding the goods. Purchaser acknowledges that no representations, understandings, conditions, or agreements have been made or relied upon other than those specifically stated in this Agree
Durável, as a manufacturer of goods, stands behind its products by warranting that, subject to the limitations below, for a period of one year from shipment, its products are in conformity with its published specifications, subject to standard tolerances for variations, except that color cannot be warranted as to uniformity of shade or conformity to samples. If Durável determines a product does not meet this warranty, it will replace it, refund the purchase price or give a credit to the purchaser, at its sole option, as Purchaser’s sole remedy.
Durável products are intended for use by professionals with skill in the industry. Purchasers must satisfy themselves of suitability of the product for site conditions.
Durável does not warrant or guarantee:
1. The work of any person or company installing its goods;
2. Failure of the product due to an installer not following the product application instructions;
3. Failure of the product due to improper design by the engineer or architect;
4. Failure of the product due to misuse, abuse, alteration, improper storage or handling, or not using or cleaning the product in the manner in which it was intended and in accordance with instructions provided by Durável;
5. Bond failure of the product caused by deficiencies in the substrate including, but not limited to, the presence of ionic compounds or soluble salts, alkali silicate reaction, alkali aggregate reaction, shale-pop, and other expansive reactions of aggregates and reinforcements.
Purchaser accepts Durável’s standard product specifications. Purchaser waives all claims relating to products sold by Durável unless notice thereof is received in writing by Durável within thirty days after delivery of the products which are the subject of the claim(s). In no event shall Durável be liable for any defective good if examination discloses that the good has been taxed beyond its normal capacity or the defective condition of such good was caused by misuse, abuse, improper installation or application, improper maintenance or repair, alteration, accident or negligence in use, storage, transportation or handling.
In no event will Durável be liable for loss of use or any incidental, indirect, special, or consequential damages, loss or expense arising in connection with the product or product order. Durável’s maximum liability shall not in any case exceed the purchase or contract price for the product claimed to be defective or unsuitable.
Durável’s sole liability, and Purchaser’s exclusive remedy, for breach of any warranty as expressly limited, at Durável’s option, is to replace material at the original FOB point or refund of the purchase price. A written notice of claim for breach of warranty must be delivered to Durável within sixty days of observation and no more than one year after delivery of the product. Durável shall be allowed
reasonable opportunity to investigate the claim and inspect the product. In no event may Purchaser, Customer, or any party, recover damages exceeding the price paid by the Purchaser for the specific goods as to which the claim is made, whether based on contract, tort, or any other theory.
Durável makes no other warranty, express or implied, and all implied warranties of merchantability and fitness for a particular purpose are hereby disclaimed. Durável shall not be liable for, and Purchaser waives all claims for, prospective profits or special, indirect, incidental, or consequential damages or any other damages or remedies not specifically provided above, whether based on negligence, breach of warranty, strict liability in tort or any other cause of action. All warranties are null and void if Purchaser has not paid in full in accordance with Durável’s payment terms.
Durável will not be liable for, and the Purchaser shall defend, indemnify and hold harmless (including without limitation costs and attorney’s fees) Durável from, any loss, damage or injury to persons or property, or claim thereof, resulting from (a) Purchaser’s or any third party’s or end user’s handling, storage, transportation, resale, application or other use of the goods, or in combination with other
substances, or otherwise, or (b) selection or recommendation by Durável of any applicator or other contractor.
Any controversy or claim arising out of or relating to the within Warranty, terms and conditions shall be settled by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Venue for the arbitration shall be in Charlotte, North Carolina.