Terms & Conditions
All sales of products by Belden Brick and Supply Company, a Michigan corporation (“BBS”) are made on the following terms and conditions (the “Terms of Sale”). In these Terms of Sale, any products or materials sold by BBS to the customer named in BBS’s Quote/Sales Order, customer’s purchase order, or BBS’s acknowledgment (“Customer”) are referred to as “Products.” In consideration of BBS agreeing to provide Products to the Customer, the Customer agrees as follows:
1. Formation of Contract. These Terms of Sale, together with the terms and conditions of any other Quote/Sales Order, confirmation, acknowledgement, and/or invoice prepared by BBS, constitutes the entire agreement between the parties (the “Contract”). Customer agrees to each and every term contained in the Contract as a precondition to BBS’s performance. Any term or condition in any purchase order or other form or document issued by Customer, regardless of the materiality of the term or condition, that differs from or is contrary to the terms and conditions contained in the Contract are objected to and excluded unless expressly agreed to in a written acknowledgment issued by BBS.
2. Price. Prices will be as stated in the Contract and are subject to change without notice. Unless otherwise acknowledged in the Contract, prices do not include freight, transportation related charges, installation of the Products, or any other services of BBS. If the Contract does include freight or transportation related charges, then Customer acknowledges and agrees that such charges are an estimate only and that Customer will be responsible for the payment of all actual freight or transportation related charges. BBS reserves the right to invoice Customer based on the actual costs incurred by BBS with respect to freight or transportation related charges, including, but not limited to, costs for fuel, labor, and other similar charges.
3. Quotations. Quoted terms shall remain in effect for thirty (30) days or such other time as is stated on BBS’s quotation. BBS’s quotations may require BBS’s interpretation of the materials required by the plans or specifications provided by Customer or Customer’s representatives. BBS makes no representations or warranties as to the accuracy or appropriateness of BBS’s quotation. Typographical and clerical errors in quotations, including errors in mathematical computation, are subject to unilateral correction by BBS. Customer shall be solely responsible for determining the materials and quantities required for a particular project or order. BBS’s quotation may not be used by any other contractor or any other person or entity without BBS’s written consent. All orders placed pursuant to a quotation are subject to approval by BBS and will not be binding upon BBS unless and until they are accepted in writing by an authorized representative of BBS.
4. Payment. Unless otherwise specified in the Contract, payment in full of the price is due at the location and in the method designated by BBS thirty (30) days after the date of invoice, without setoff, discount, or other deductions or charges. Any payment that is not made when due shall accrue a time price differential of 1% per month. The accrual or payment of such time price differential as provided above is cumulative and will not constitute a waiver or election by BBS of any rights and remedies in connection with a default by Customer. Customer shall also pay any and all collection costs of BBS, including but not limited to court costs and actual attorney fees, with respect to any delinquent amounts owed by Customer. If the shipment of Products is delayed by or at the request of Customer, payment will remain due in full thirty (30) days from the date of BBS’s invoice. In such event, BBS may impose, and Customer shall pay, storage charges and other incidental expenses incurred by BBS as a result of the delay. With respect to any Products delivered to, staged at, or held at BBS’s facility, Customer shall take possession of such Products within thirty (30) days of BBS’s receipt of the Products from the manufacturer, or thirty (30) days following the date of BBS’s invoice in the event that the Products are already located at the BBS facility. Customer’s failure to take possession of such Products within this time period shall be deemed an abandonment of such Products. BBS may require payment in advance or withhold future deliveries upon any late payment or reasonable uncertainty as to Customer’s ability to pay. BBS may change its quoted prices upon an unusual or unforeseen increase in BBS’s costs. Customer agrees not to send BBS payments marked “paid in full”, “without recourse”, or similar language. If Customer sends such a payment, BBS may accept it without losing any of BBS’s rights and Customer will remain obligated to pay any further amount owed to BBS.
5. Taxes and Other Charges. Unless otherwise specified in the Contract, the price does not include any federal, state, or local property, license, privilege, sales, use, excise, gross receipts, or other similar taxes which may be applicable to the Products, their sale, their value or use, or any services performed in connection herewith. The amount of any such taxes or fees related to the sale or use of the Products sold hereunder shall be paid by Customer. A sales tax exemption certificate must accompany the signed Quote/Sales Order if Customer is requesting tax exemption. If such exemption certificate is not recognized by the governmental taxing authority involved, Customer agrees to promptly reimburse BBS for any taxes covered by such exemption certificate. Prices also do not include fuel or other types of energy surcharges which may be imposed by the manufacturer, supplier, or shipper of the Products. The price of the Products shall automatically be increased to reflect any fuel or energy surcharges which BBS is charged by the manufacturer, supplier, or shipper of the Products.
6. Special Orders. Unless otherwise specified in the Contract, in the event that Customer places a special order through BBS for Products from a third party manufacturer, then 50% of the purchase price shall be required from Customer at the time the Contract is finalized. Customer shall be responsible for the payment of any special order materials that are manufactured but not used for Customer’s job, together with all interest, storage charges, or other related fees charged by the manufacturer of the Products or incurred by BBS to hold any Products beyond the manufacturer’s specified inventory holding period.
7. No Damages for Delay. Although BBS will attempt to meet shipment and delivery schedules, BBS will not be liable to Customer for any damages resulting from late shipment or delivery, including but not limited to direct, indirect, economic, incidental, or consequential damages, lost profits or income, loss of use, downtime, cover, or employee or independent contractor wages, payments, and benefits.
8. Delivery and Risk of Loss. Unless otherwise specified in the Contract, the risk of loss, theft, destruction, or damage to the Products shall pass to Customer F.O.B. point of shipment. Any delivery dates or other schedule of performance by BBS are approximations, and the sole obligation of BBS with respect to the schedule of delivery or performance will be to use reasonable efforts to meet scheduled shipping, delivery and performance, but time is not of the essence. BBS may ship all the Products at one time or in portions from time to time. BBS shall have the right, but not the obligation, to determine the method of shipment and routing of the Products, unless otherwise stated in BBS’s quotation or acknowledgment. In situations where Customer is picking up the Products from a BBS facility, Customer or its carrier shall be responsible for supervising the loading and unloading of Products and for securing all loads for safe transport, and shall indemnify and hold BBS harmless from any liability for personal injury, death, property damage, or other loss resulting from the loading, transport, delivery or unloading of the Products. The Customer’s receipt of the Products shall constitute a waiver of any claims for delay.
9. Unavoidable Delay. If BBS is unable to deliver the Products to Customer on time because of anything BBS cannot control (including, without limitation, typical “force majeure” events such as casualty, labor trouble, acts of war, accidents, unavailability or delays of supplies or transportation), then the estimated delivery or performance time shall be extended accordingly, and BBS shall not be liable to Customer for any damages caused by the delay.
10. Manufacturer Warranty; Defects; Remedies. Customer agrees to inspect the Products immediately upon receipt of such Products from BBS. Customer acknowledges and agrees that BBS is a retailer of the Products and therefore BBS does not warrant the material or workmanship of any Products sold to Customer. Neither Customer nor any other person may modify or expand any Product warranty, waive any of the limitations, or make any different or additional warranties with respect to the Products. Any statements to the contrary are hereby rendered null and void unless made in a writing signed by an authorized officer of BBS. Except as stated herein, Customer shall not have any right of rejection or revocation of acceptance of Products. Customer’s sole remedy for any defect in the Products shall be limited to claims against the third party manufacturer or supplier of the Products.
11. Disclaimer of Warranties; Limitation of Liability. CUSTOMER PURCHASES ALL PRODUCTS “AS IS” AND BBS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED AS TO THE PRODUCTS AND, IN PARTICULAR, DOES NOT MAKE ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE PRODUCTS. Notwithstanding the foregoing, BBS assigns to Customer all warranties provided by third party manufacturers or suppliers of such Products, to the extent such warranties are assignable. Customer must take reasonable steps to mitigate any loss and, regardless of any other obligation BBS may otherwise have to the Customer, BBS is not responsible for any losses that Customer failed to reasonably mitigate. BBS SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES ARISING FROM ANY PRODUCT DEFECT, DELAY, NON-DELIVERY, RECALL OR OTHER BREACH. If Products are sold by Customer, Customer will include in its agreement for resale provisions that limit recoveries in accordance with these Terms of Sale. In case of Customer’s failure to include in any agreement for resale the Terms of Sale providing for such limitations, Customer will indemnify and hold BBS harmless against any liability, loss, cost, damage, or expense (including reasonable attorney fees) arising out of or resulting from the failure. BBS’s liability in all events shall be limited to the purchase price paid for the Products that give rise to such liability.
12. Security Interest. Customer grants and BBS retains a security interest in the Products (and any proceeds thereof) to secure payment of the unpaid balance of the price and all other indebtedness that Customer now and in the future owes to BBS, and BBS will have all rights of a secured party under the Uniform Commercial Code with respect to the Products. Customer hereby authorizes BBS to create and file a financing statement to perfect its interest in the Products. Customer agrees to execute and deliver such other documents as requested by BBS to create, perfect, preserve or enforce such security interest, and appoints BBS as its attorney-in-fact with authority, at BBS’s option, to take actions as BBS deems reasonable in the circumstance to perfect the above security interest in any one or more jurisdictions. Customer shall pay (or reimburse BBS) for any and all applicable filing fees.
13. Quantities. Customer agrees to inspect the quantity of Products immediately upon receipt of such Products from BBS. Any claim by Customer that BBS failed to deliver the agreed-upon quantity of Products must be submitted to BBS in writing immediately, but in no event later than 24 hours of receipt of the Products. If Customer fails to do so, then it shall be conclusively presumed that the quantity provided in the packing list was delivered and any claim to the contrary shall be irrevocably waived.
14. Compliance and Suitability. BBS is not responsible for obtaining any permits, inspections or licenses required for the use or installation of the Products. BBS does not make a representation or promise that the Products will conform to any law, ordinance, regulation, code or standard. Customer will be responsible for compliance with any and all federal, state, or local laws or regulations with respect to the Products and shall indemnify and hold BBS harmless from and against any and all claims of violations of laws or regulations or other claims of personal injury or property damage directly or indirectly related to the installation, maintenance, or use of the Products.
15. Product Care. Customer agrees to follow all manufacturer and/or supplier care instructions for the Products. Customer shall hold BBS harmless from any and all claims arising from Customer’s failure to follow manufacturer and/or supplier care instructions for the Products.
16. Variances. Customer acknowledges and agrees that Product depictions in catalogs, websites, and any samples are for illustrative purposes only, and that variances in color, texture, size and other physical properties may exist between lots, literature (including catalogues and BBS’s website), and samples of the Products. BBS shall have no liability for any such variances between Products and Customer shall have no right to cancel or return Products as a result of any such variance. BBS shall have no liability for any chippage, distortion, workmanship, or variances in color, texture, size, or any other physical properties of the Products following the installation of the Products.
17. Cancellation; Returns.
(a) Cancellation. Customer does not have any right to cancel its agreement to buy Products from BBS. If, however, BBS agrees in writing to permit cancellation, then Customer shall immediately pay to BBS a cancellation charge in an amount equal to the purchase price less allowances (in amounts that BBS determines in its sole discretion) for the realizable value to BBS of Products that BBS purchased or ordered before cancellation and which cannot be cancelled with the manufacturer.
(b) Returns. Customer may not return any special orders. All other resaleable and undamaged Products are subject to return only for credit and only with BBS’s prior written consent, which consent may be withheld in BBS’s sole discretion. BBS may condition a return on Customer providing certain information and paying a restocking fee, an overhead fee of 20% of the purchase price, and paying for the Products to be shipped back to BBS.
(c) Cancellation by BBS. If Customer fails to pay or perform any indebtedness or obligation that Customer at any time owes to BBS, then BBS may consider Customer’s failure to be an anticipatory repudiation of any or all outstanding contracts that provide for BBS to sell Products to Customer, and BBS may, without liability to Customer, cancel any or all of those outstanding contracts. In the event of any shortages of Products for any reason, BBS may, without liability to Customer, cancel any or all of those outstanding contracts or allocate any available Products in a fair and reasonable manner among its customers in such manner as BBS, in its sole and absolute discretion, deems appropriate.
18. Insecurity and Adequate Assurance. If BBS ever believes in good faith that it has grounds for insecurity as to Customer’s performance under any contract between Customer and BBS to purchase Products (including but not limited to the Contract), then Customer shall provide adequate assurance of due performance immediately, but not later than ten (10) days after BBS demands the assurance. Customer’s failure to do so shall be considered a repudiation by Customer of all then-existing contracts (including but not limited to the Contract), that provide for Customer to purchase Products and/or services from BBS (“Outstanding Contracts”). “Grounds for insecurity” include, without limitation: (a) Customer’s failure to make a payment to BBS or to perform another obligation under any one or more Outstanding Contracts, (b) Customer’s insolvency, (c) a deterioration in Customer’s financial condition after an Outstanding Contract was entered into, or (d) Customer’s failure to provide financial statements and other financial information to BBS promptly upon BBS’s request. “Adequate assurance of due performance” includes, without limitation, providing a letter of credit or comparable security for all obligations of Customer that then exist or that will arise in the future under all Outstanding Contracts.
19. Indemnity. Customer shall indemnify and hold harmless BBS with respect to any and all costs, fees, penalties, damages, losses, claims and expenses, including but not limited to attorney fees, that BBS incurs as a result of: (a) Customer’s breach of any of Customer’s obligations under these Terms of Sale, including but not limited to BBS’s collection of past-due amounts; or (b) Customer’s use, misuse, or installation of the Products.
20. Time For Bringing Action. Any action that Customer brings against BBS for breach of the Contract or for any other claim that arises out of or relates to the Products or their sale or delivery must be brought within six (6) months after the Products are received by Customer.
21. Applicable Law. The Contract between BBS and Customer shall be considered to have been made in the State of Michigan, and it shall be governed by and interpreted according to Michigan law. Either party may bring any action that arises out of or relates to the Contract in any federal or state court in Kent County, Michigan that has jurisdiction of the subject matter, and Customer irrevocably consents that any such court shall have personal jurisdiction over Customer and waives any objection that the court is an inconvenient forum.
22. Assignment. Customer shall not assign or transfer this Contract without the prior written consent of BBS.
23. Builders Trust Fund Act. BBS is a materialman/supplier for all purposes under the Builders Trust Fund Act.
24. Complete Agreement; Amendment. If Customer has not otherwise agreed to these Terms of Sale, then Customer’s acceptance of, delivery of, or payment for, the Products shall constitute Customer’s agreement to these Terms of Sale. The terms of the Contract contain the entire agreement between Customer and BBS. Any change in the Contract must be by a writing signed by an authorized officer of BBS.
Terms and Conditions of Sale - Updated 04.24.19