MODULAR TERMS AND CONDITIONS OF SALE AND ACCEPTANCE
1. Offer and Acceptance; Entire Agreement. These Terms and Conditions of Sale and Acceptance (“Terms”), MCS’s Customer Agreement form (“Customer Agreement”), MCS’s Order Confirmation form (“Order Confirmation”), and MCS’s Credit Application and Agreement (“Credit Application”) (collectively, the “Agreement”) constitute the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Any person or entity ordering, purchasing, or accepting delivery of goods or services, a Buyer (“Buyer”), from Modular Construction Supply, Ltd. (“MCS”) irrevocably accepts the Agreement upon the earliest of: (i) Buyer placing an order for any goods or services of MCS; (ii) accepting the delivery of any goods or performance of any services by MCS; or (iii) paying any amount due to MCS for goods or services. MCS objects to and rejects any additional or different terms or conditions contained in Buyer’s proposal, order, or other documentation, and such additional or different terms shall not become part of the contract between MCS and Buyer unless expressly accepted in writing by an authorized representative of MCS. To the extent these Terms contradict the Customer Agreement, Order Confirmation, or Credit Application, these Terms will prevail. Notwithstanding the foregoing, however, if MCS and Buyer (“Parties”) have a written contract in effect between them, executed by hand, by authorized representatives of each of them, that expressly governs MCS’s sale and Buyer’s purchase of such goods or services, then that written contract shall take precedence over any conflicting provision in this Agreement.
2. Changes or Termination after Order Confirmation. Each order of goods by Buyer that is confirmed by MCS with an Order Confirmation, may (a) be changed by the written agreement of the Parties, (b) unless stated to be non-cancellable on the face of the Order Confirmation, be terminated in whole or in part by MCS at any time prior to MCS’s delivery of the goods or performance of the services, and (c) not be revoked by Buyer unless MCS agrees in writing to cancel that Order Confirmation. Upon cancellation or suspension at the request of the Buyer, and acceptance by MCS, Buyer shall reimburse MCS promptly for all expenditures incurred by MCS, including, but not limited to, material used, labor and engineering services, a proportionate share of direct manufacturing, engineering, selling, general and administrative expenses, and profits which would have been earned under the purchase order. In addition, the Buyer shall also reimburse MCS for any extraordinary costs and other expenses attributable to such suspension or cancellation. No goods shall be returned to company (whether due to cancellation of an Order Confirmation or for any other reason not the fault of MCS) without prior written authorization from MCS.
3. Delivery; Performance; Title Transfer; Risk of Loss. All sales of goods are F.O.B. manufacturing facility (“Delivery Point”). Unless otherwise agreed, MCS will select the freight carrier and arrange for shipping. Title and risk of loss shall pass to Buyer as soon as the goods are in the possession of the freight carrier. MCS shall act on Buyer’s behalf in putting the goods in the possession of the freight carrier, but without responsibility on MCS’s part for shipment or delivery. Use of a “delivered price” does not change these terms. Unless the purchase price is expressly stated on the Order Confirmation to be a “delivered price,” the purchase price of the goods does not include any fees or costs related to handling, packaging, crating, labeling, storage, export, and other delivery expenses, and Buyer shall be separately liable for all such fees and costs. If the purchase price is stated to be a “delivered price,” then Buyer acknowledges that the stated purchase price was determined by MCS based on the quantity of the goods ordered, the delivery location, the delivery date, and other factors; that any extraordinary increase in fuel cost may be added as a surcharge; and that any agreed-upon change to Buyer’s order will result in a new determination of the “delivered price” by MCS. However, Buyer may review MCS’s new delivered price before committing to any change in Buyer’s order.
4. Inspection and Rejection of Nonconforming Goods. Upon delivery of the goods, Buyer shall inspect the goods within three (3) business days of receipt of the goods (“Inspection Period”). Buyer will be deemed to have accepted the goods after expiration of the Inspection Period unless it notifies MCS during the Inspection Period in writing of any Nonconforming Goods and furnishes such written evidence or other documentation as required by MCS. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Order Confirmation; or (ii) product’s label or packaging incorrectly identifies its contents. If Buyer notifies MCS of any Nonconforming Goods within the Inspection Period, MCS shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming goods, or (ii) credit or refund the price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. If MCS exercises its option to replace the Nonconforming Goods, MCS shall ship to Buyer the conforming goods. Buyer acknowledges and agrees that the remedies set forth in this Section 4 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section 4, all sales of conforming goods to Buyer are final and Buyer has no right to return conforming goods to MCS purchased under this Agreement.
5. Non-Delivery of Goods. The quantity of goods recorded by MCS on dispatch from MCS’s Delivery Point is conclusive evidence of the quantity received by Buyer upon delivery, unless Buyer can provide conclusive evidence proving the contrary within the designated Inspection Period. MCS shall not be liable for non-delivery of goods, delay in delivery of goods, or any loss or damage that occurs to goods during transit. Buyer’s sole remedy for claims or problems related to shipment or delivery shall be against the freight carrier. Any delay, damage, loss, or non-delivery shall not be grounds for Buyer to terminate its order. MCS shall not be liable for any non-delivery of goods unless Buyer provides written notice to MCS of the non-delivery within five (5) business days of the date when the goods would have been received in the ordinary course of business. Any liability of MCS for non-delivery of goods shall be limited to, at Buyer’s discretion, (i) delivering the goods within a reasonable time, or (ii) adjusting the invoice respecting such goods to reflect the actual quantity delivered.
6. Deposits; Invoices; Payment Terms; Taxes. The purchase of all custom goods engineered and manufactured for a particular project requires a deposit of 50% of the total purchase price at the time of order. Payment for goods or services will be due prior to delivery of the goods or performance of the services, unless MCS has agreed to extend credit to Buyer. To secure Buyer’s payment of the purchase price and all other amounts due to MCS in connection with such goods, Buyer grants MCS a security interest in all goods delivered to Buyer and in any proceeds from such goods. MCS may at its option file financing statements and other instruments to perfect this security interest. MCS may in its sole discretion reevaluate whether to extend credit to any buyer and may require payment in advance for any order at any time. If MCS has agreed with respect to a particular order to extend credit, payment will be due from Buyer within the number of days specified on the face of the Order Confirmation (or if no number of days is specified, then within 30 days) after the earlier of (a) delivery of the goods or performance of the services, and (b) receipt of MCS’s invoice. Buyer shall report and pay all taxes and assessments imposed on MCS or Buyer as a result of MCS’s sale or Buyer’s purchase of goods or services, including but not limited to any applicable federal, state or local sales, use, gross receipts, value-added, or excise taxes or customs duties (collectedly, “Taxes”), but excluding the Texas franchise tax and the federal income tax. MCS may but is not required by this Agreement to collect such Taxes from Buyer. If Buyer or a sale is exempt from any Taxes, Buyer must provide MCS a valid exemption certificate at the time the order is placed. Any amount due to MCS from the sale of goods or services that is not paid when due shall accrue interest at the highest rate allowed by applicable law, or 18% per year, whichever is lower, and Buyer shall be liable for MCS’s reasonable costs incurred to collect any past-due amount, including but not limited to reasonable attorney’s fees and costs of arbitration.
State Specific Matters:
For sales in New Mexico, Section 6(b) above is deleted and the following is inserted in its place: (b) receipt of MCS’s invoice. Buyer shall reimburse MCS for all taxes and assessments imposed on MCS as a result of MCS’s sale of goods or services, including but not limited to any applicable federal, state or local sales, use, gross receipts, value- added, or excise taxes or customs duties (collectively, “Taxes”), but excluding the Texas franchise tax and the federal income tax. MCS may but is not required by this Agreement to collect such Taxes from Buyer at the time of sale. Buyer shall report and pay all taxes and assessments imposed on Buyer as a result of Buyer’s purchase or use of goods or services, including but not limited to New Mexico compensating tax. If Buyer maintains that MCS’s receipts from a sale are deductible from New Mexico gross receipts tax, Buyer must provide MCS a valid nontaxable transaction certificate at the time the order is placed.
7. Limited Support. As an accommodation to Buyer, MCS may, but is not obligated to, provide Buyer with support services from time to time, in conjunction with goods sold by MCS. Services may consist of technical support such as educating architects, engineers and other design professionals about the goods, and the proper use and best practices when designing with such goods. Construction support may consist of educating and training general contractors and installers about goods, including but not limited to, evaluating construction feasibility, and educating on the proper use and best practices when installing the goods. Such support services are provided on an “AS-IS” basis for internal, non-commercial purposes, and MCS disclaims all warranties, express or implied, for such support services. Buyer agrees and acknowledges that as with any such services, (a) any information, documents and files, including but not limited to, design details, CAD files, construction best practices, that are provided by MCS are provided solely as design and construction aids. MCS does not directly provide architectural or engineering services and Buyer agrees to have a registered engineer and architect independently review Buyer’s requirements and certify in writing that Buyer’s plans, and Buyer’s use of the goods and any support services satisfy all applicable building codes, safety standards and construction practices. Buyer represents and warrants that Buyer is not relying and will not rely upon any representation or statement from MCS or its personnel in determining whether, when and how to use the goods; instead, Buyer will rely solely on Buyer’s own judgment and the advice that Buyer independently obtains from Buyer’s own registered engineer and other licensed construction professionals. No support or service provided by MCS shall be deemed as supervising or directing the work of the Buyer or Buyer’s subcontractors. Neither the presence of, nor any observations of MCS, shall excuse Buyer or its subcontractors of any deficiencies in their work. Each project is unique and any questions specific to the project must be answered by the project architect or engineer.
8. LIMITED WARRANTIES.
a. Goods manufactured by a third party (“Third-Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the goods. For the avoidance of doubt, the Third-Party Products are sold “AS IS”.
b. MCS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR THIRD-PARTY PRODUCT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
c. Buyer may only transfer and assign a valid warranty to an End User. “End User” means a final purchaser that (i) has acquired a good for its own internal use and benefit; (ii) has not acquired the goods for resale, remarketing, distribution, or other use; and (iii) is the owner of one or a series of buildings, constructions or other structures where goods are, have been, or will be used, incorporated or installed.
9. LIMITATION ON LIABILITY. IN NO EVENT SHALL MCS BE LIABLE TO BUYER, UNDER ANY EQUITABLE, COMMON LAW, TORT, CONTRACT, ESTOPPEL, NEGLIGENCE, STATUTORY, STRICT LIABILITY, OR OTHER THEORY, FOR ANY EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR CONTINGENT DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF SALE, BUSINESS, PROFITS, DATA, OPPORTUNITY, OR GOOD WILL, EVEN IF THE REMEDIES PROVIDED TO BUYER UNDER THIS ORDER FAIL OF THEIR ESSENTIAL PURPOSE, AND EVEN IF MCS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER HEREBY WAIVES AND RELEASES ANY OTHER CLAIM AGAINST MCS FOR ANY LOSS OR DAMAGE ARISING IN CONNECTION WITH ANY ACTUAL OR ALLEGED BREACH OF THIS AGREEMENT OR THE PARTIES’ RELATIONSHIP OF SELLER AND BUYER, REGARDLESS OF WHETHER THE CLAIM IS ASSERTED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. IN ADDITION, MCS’S LIABILITY FOR DAMAGES OF ANY KIND (WHETHER FOR GOODS DELIVERED, SERVICES PERFORMED, NON-DELIVERY OF GOODS, OR NON- PERFORMANCE OF SERVICES) SHALL IN NO EVENT EXCEED THE PRICE ACTUALLY PAID BY BUYER, IF ANY, FOR SUCH GOODS OR SERVICES.
10. INDEMNIFICATION. BUYER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS MCS AND ITS OFFICERS, DIRECTORS, MANAGERS, MEMBERS, AGENTS, AFFILIATES, SUCCESSORS AND PERMITTED ASSIGNS, FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES (WHETHER ACTUAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE), LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTERESTS, AWARDS, PENALTIES, FINES, COSTS OR EXPENSES OF WHATEVER KIND, (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES, EXPERT WITNESS CHARGES, AND OTHER OUT-OF-POCKET COSTS OF INVESTIGATION OR DEFENSE), THAT ARE INCURRED BY MCS RELATING TO: (A) BUYER’S BREACH OF CONTRACT WITH MCS OR ANY THIRD PARTY, OR (B) BUYER’S USE, INSTALLATION, HANDLING, SHIPPING, TRANSPORTATION, OR DISPOSAL OF THE GOODS, OR (C) ANY ACTUAL OR ALLEGED FAILURE OF BUYER, OR ANY CONTRACTOR OF BUYER (OTHER THAN MCS), TO COMPLY WITH ALL APPLICABLE LAWS, RULES, OR REGULATIONS.
State Specific Matters:
In the event the Tex. Ins. Code Ann §151 et. seq. is applicable, then the following indemnity provision will govern:
BUYER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS MCS AND ITS OFFICERS, EMPLOYEES AND AGENTS FROM ANY AND ALL CLAIMS, DAMAGES, LIABILITIES OR COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES AND DEFENSE COSTS, ARISING OUT OF BODILY INJURY OR DEATH OF MCS’S EMPLOYEE, ITS AGENT, OR ITS SUBCONTRACTOR OF ANY TIER, AND REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF MCS AND ITS OFFICERS, EMPLOYEES AND AGENTS.
To the extent, if at all, Section 56-7-1 NMSA 1978, as amended, is applicable to this Agreement:
ANY AGREEMENT TO INDEMNIFY, HOLD HARMLESS, INSURE OR DEFEND ANOTHER PARTY CONTAINED HEREIN OR IN ANY RELATED DOCUMENTS WILL NOT EXTEND TO LIABILITY, CLAIMS, DAMAGES, LOSSES OR EXPENSES, INCLUDING ATTORNEYS’ FEES, ARISING OUT OF BODILY INJURY TO PERSONS OR DAMAGE TO PROPERTY CAUSED BY OR RESULTING FROM, IN WHOLE OR IN PART, THE NEGLIGENT ACT OR OMISSION OF ANY INDEMNITEE, ITS OFFICERS, EMPLOYEES OR AGENTS.
11. Waiver; Reformation; Severability; Assignment. Failures to exercise any right, power or remedy under this Agreement, or failures to insist on the other Party’s compliance with this Agreement, or customs, practices, or courses of dealing inconsistent with this Agreement, will not waive or otherwise prejudice either Party’s rights under this Agreement. In case any provision in this Agreement shall be determined invalid, illegal, or unenforceable, then such provision shall be reformed to be made legal or valid. If the provision cannot be made legal without best fulfilling the intended agreement, then the provision shall be deleted and the validity, legality and enforceability of the remaining provision shall not in any way be affected or impaired thereby. Buyer may not assign its rights or obligations under this contract unless Buyer first obtains MCS’s written consent.
12. Force Majeure: MCS shall not be liable or responsible to Buyer, nor deemed to have breached or defaulted this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent that such failure or delay is caused by or results from acts or situations beyond the control of the parties including, but not limited to, acts of God, pandemics, strikes, lockouts, labor troubles, war, terrorism, inability to procure materials, restrictive governmental laws or regulations or other cause without fault and beyond the control of the party obligated, and such failure or delay makes it impracticable or commercially unreasonable for either party to perform under the Agreement; provided no force majeure shall apply to Buyer’s obligation to pay in a timely manner for goods. If partial fulfillment of the Order Confirmation is possible or the Order Confirmation has already been partially fulfilled at the time of the event, MCS may elect to terminate the remainder of the Order Confirmation or fulfill as much of the Order Confirmation as possible at pro rata cost, at MCS’s sole discretion.
13. Modification; Governing Law; Cumulative Remedies. No modification, amendment, revision, waiver, or other change to this Agreement shall be binding on either MCS or Buyer unless agreed upon in writing by both parties. Any oral or written representation, warranty, course of dealing, or trade usage not specified herein shall not be binding on either MCS or Buyer. The Laws of the State of Texas (excluding any application of its conflicts of law principles), and any applicable United States federal law, govern the interpretation and enforcement of this contract, and any dispute arising from or relating to this Agreement, or the relationship between MCS and Buyer. Venue for all suits or arbitration shall be in Bexar County, Texas. All remedies set forth in this Agreement are cumulative, not exclusive, unless they are expressly stated to be exclusive remedies.
Updated September 30, 2021