This Terms and Conditions of Sale or Rental (“Agreement”) applies to the undersigned customer’s (“Customer”) purchase or lease of goods, equipment, or products (“Product” or “Products”), a Delaware Limited Liability Company d/b/a/ BuildingPoint Mid-America (“BuildingPoint”), as designated on the associated order ticket (the “Sales Order”).
- SCOPE AND PRICE QUOTES. Every Sales Order placed with BuildingPoint is conditioned and confirms the Customer’s acceptance of these terms and conditions. The terms and conditions herein apply to any transactions between Customer and BuildingPoint in which a written Sales Order and Agreement fail to be signed. Written price quotes by BuildingPoint will remain open for acceptance for the number of days stated in the price quote. Unwritten price quotes shall not be binding on BuildingPoint.
- DELIVERY. BuildingPoint’s delivery dates are approximate. BuildingPoint will maintain delivery schedules as closely as possible, but all advance shipping dates are best estimates only. BuildingPoint will not be liable for delivery delays, nor shall BuildingPoint be responsible for other defaults in performance that arise from causes beyond BuildingPoint’s control, including, without limitation, force majeure events. BuildingPoint assumes no liability for loss or consequential damages due to delivery delays. Unless otherwise stipulated by the parties, delivery of the Products to the Customer or Products returned to BuildingPoint shall be made FOB Destination. The Customer must inspect all Products, including any unique order configurations, upon delivery or pick-up.
- CREDIT AND SECURITY AGREEMENT. All Customer purchases must be paid in cash unless an authorized BuildingPoint representative authorizes a credit sale in writing. If credit is extended to Customer, payment terms shall be by the Sales Order and in no case will be longer than net twenty (20) days from invoice. BuildingPoint may extend or deny credit to the Customer at the sole and absolute discretion of BuildingPoint. If the Customer desires payment terms from BuildingPoint, it agrees to thoroughly and truthfully execute BuildingPoint’s Credit Application. In connection with the extension of credit, BuildingPoint may require one or more of the following to secure payment: a security deposit, delivery of an irrevocable letter of credit, and personal guaranty(s). This Agreement and the Sales Order create a purchase money security interest in the Products and shall constitute a security agreement under the Uniform Commercial Code for all purposes. BuildingPoint retains a purchase money security interest in the Products, including all additions, accessions, and accessories to and replacements thereof, to secure the performance of all Customer’s financial obligations. BuildingPoint is authorized to file a financing statement or any additional documents necessary to perfect its purchase money security interest in said Products. If BuildingPoint approves credit for a particular Sales Order, it does not require that BuildingPoint extend credit for subsequent Sales Orders.
- CUSTOMER PAYMENTS; INTEREST CHARGE. All payments must be in U.S. currency. No discount will be granted for advance payment. BuildingPoint shall be entitled to set off, offset, and deduct for prior debt balances in the Customer’s account. Customer shall not withhold or set off from any amounts due to BuildingPoint for any charges claimed to be owed by BuildingPoint to the Customer for any reason whatsoever. If total payment is not made on or before the specified due date, the Customer agrees to pay service charges on all overdue sums owing to BuildingPoint at the rate of one percent (1.5%) per month until the date on which payment is made in full.
- TAXES. Prices do not include foreign or domestic sales, use, excise, or similar taxes. Consequently, in addition to prices specified herein, the amount of any present or future sales, use, excise or other general or specific tax, import or export tariffs, duties or penalties, or other governmental charges fixed or imposed by any lawful authority(s) upon or applicable to the production, sale, shipment, delivery, rental or use of the Products sold hereunder shall be added to the price and be paid by the Customer, or in lieu thereof, Customer shall provide BuildingPoint with a tax exemption certificate acceptable to the taxing authorities. If BuildingPoint pays any such tax, the Customer shall reimburse BuildingPoint upon presentation of the invoice.
- CANCELLATION. Cancellation of all or part of a Sales Order through no fault of BuildingPoint will only be permitted if such cancellation is signed by an authorized BuildingPoint representative, which may be granted in the sole and absolute discretion of BuildingPoint. Under no circumstances shall a cancellation be permitted if received less than 30 days before the scheduled delivery date. If BuildingPoint agrees to the cancellation, the Customer may be subject to a charge for any particular work performed.
- RETURNS. No Product may be returned without BuildingPoint’s prior written consent, which consent may be withheld by BuildingPoint at its sole discretion. No returns will be accepted for unique order Products. Returns must be shipped prepaid by the Customer in the original boxes and packaging materials unless otherwise approved by an authorized BuildingPoint employee. The customer must enclose a packing slip or note containing his name, address, phone number, and description of the problem with any returns. All returns are subject to a minimum fifteen percent (15%) restocking charge. Freight and transportation charges for returned Products shall be the Customer’s responsibility.
- OPERATIONAL AND SAFETY RESPONSIBILITY. The Customer must thoroughly read and understand all the manufacturer’s operational guidelines and safety warnings. The Customer agrees to rely upon the manufacturer’s customer service departments, websites, social media, and other manufacturer literature for training, instruction, and operating purposes. BuildingPoint only provides limited initial training concerning the Products. BuildingPoint may provide more extensive training performed on a fee basis. Additionally, the Customer must read the Product specifications and limitations before purchase. The Customer, and not BuildingPoint, bears the risk that a Product does not satisfy the Customer’s specific expectations or demands. Any calibration of a Product is guaranteed to be within manufacturer specifications as of the time a Product leaves BuildingPoint. The Customer assumes the responsibility to maintain the calibration accuracy after that and releases BuildingPoint of all liability if the calibration is disturbed.
- WARRANTY DISCLAIMER; LIMITATION OF LIABILITY. BuildingPoint does not provide any express or implied warranties for the Products. The Customer shall look to the manufacturer’s warranty policy as specified in the sales literature and the instruction manual when the order is placed. THE PRECEDING STATES BUILDINGPOINT’S ENTIRE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDIES, RELATING TO THE USE OR PERFORMANCE OF THE PRODUCTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE PRODUCT, ACCOMPANYING DOCUMENTATION, AND MATERIALS ARE PROVIDED “AS-IS” AND WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND BY BUILDINGPOINT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. BuildingPoint’s liability is limited to servicing or adjusting any returned Products and replacing any defective parts during the manufacturer’s warranty period. BuildingPoint shall not be responsible, obligated, or liable for any injury or damage resulting from an application or use of the Products, either singly or in combination with other products. BUILDINGPOINT SHALL NOT BE LIABLE FOR DAMAGES, INCLUDING BUT NOT LIMITED TO INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCTS OR ARISING OUT OF ACCEPTANCE OF THE SALES ORDER.
- ATTORNEYS FEES; INDEMNIFICATION. Suppose suit or other proceedings shall be brought against the Customer for recovery of the purchase price, any unpaid balance, or the breach by Customer of any term of this Agreement. In that case, the Customer shall pay to BuildingPoint, in addition to any damages provided by law, reasonable attorneys’ fees, and collection costs. Customer agrees to indemnify and hold BuildingPoint harmless from and against any causes of action, claims, damages, charges, complaints, liabilities, obligations, costs, losses, debts, and expenses suffered by it which directly or indirectly result from, relate to, arise out of, or are attributable to: (a) any inaccuracy in any representation or breach of any warranty contained herein by Customer; (b) any failure by Customer to perform or observe, or to have performed or observed, in total, any covenant, agreement or condition to be performed or observed by it under this Agreement; or (c) any unauthorized use of, or changes to, the Products.
- RENTAL TERMS. If the Customer is renting Products from BuildingPoint: (a) the first month’s rent and security deposit shall be due in advance or at time of delivery, and subsequent rental payments are due in full on the first day of each monthly rental period; (b) the Customer bears the risk of loss/damage to the rented Products beginning with the time of delivery and ending at the time the Products are returned to BuildingPoint; (c) the Customer shall carefully inspect the rented Products at time of delivery or pick-up and agrees to inform BuildingPoint of any damages or performance issues with the rented Products at the time of return to BuildingPoint; (d) the Customer shall keep the Products insured in an amount equal to the value stated on the Sales Order; (e) title to the Products shall at all times remain with BuildingPoint; (f) if the Customer breaches any provision of this Agreement, BuildingPoint reserves the right to terminate the rental agreement and recover the Products at any time, including the right to enter the Customer’s premises; (g) the Customer shall use the Products in compliance with all manufacturer instructions and agrees to carefully read and abide by all safety warnings; (h) the Customer shall not make any modifications to the Products; and (i) if the Customer has rented a GPS unit, it agrees to use the related data device provided by BuildingPoint to stream data only directly related to the GPS. Any data connected to another device will be charged to the Customer at the cellular carrier’s current rate.
- LEASE TERMS.
- LEASE PAYMENTS – The lessee agrees to pay the Lease Payments for the Term as specified in the Agreement, in immediately available funds, on the Due Date. All payments of Lease shall be made directly by Lessee in U.S. Dollars. Each fee will be applied first to the oldest charge due under the Lease and then any current payments. Suppose the Lessee fails to pay any amounts required under this Lease when due. In that case, Lessee shall pay Lessor, in addition to such charges, interest at the lesser of an annual rate of 18% or the highest rate allowed by the law governing this Lease on any unpaid and delinquent balance.
- LEASE RETURN & RENEWAL – Five (5) days before the expiration of the Term, Lessee shall give Lessor written notice of Lessee’s request to either extend the Lease, purchase the Equipment, or return the Equipment to Lessor. Provided Lessee has given such timely information of return; Lessee shall return the Equipment, freight, and insurance prepaid to Lessor in the condition required by this Lease, and in a manner and to a location designated by Lessor. If Lessee fails to notify Lessor so or to have notified Lessor fails to return the Equipment as provided herein.
Nothing contained herein is intended to relieve Lessee of its obligation to return the Equipment or restrict Lessor’s right to recover the same in the event of termination of the Lease. At the time of return, the Equipment will be (i) free and clear of all Liens (other than Lessor Liens) and rights of third parties under sublease or similar agreements or arrangements; and (ii) in as good operating condition as when delivered to Lessee hereunder, ordinary wear and tear excepted.
- TITLE – Lessor shall always retain ownership and title to the Equipment (including for tax purposes). All documents of identification and evidence of delivery shall be delivered to Lessor. Lessee shall, at its expense, protect and defend Lessor’s title against all persons, at all times, keeping the Equipment free from any legal process or encumbrance whatsoever, including but not limited to liens, attachments, levies, and execution (other than those arising from claims against Lessor unrelated to the Equipment), and shall give Lessor immediate written notice thereof and shall indemnify lessor from any loss caused thereby.
- PURCHASE OPTION – At any time during the term of this lease, Lessee shall have the option, upon at least ten( 10) days of irrevocable notice to Lessor, to purchase the equipment at a value equal to the remaining device balance as outlined in the Agreement, provided that at the time of giving such notice Lessee is not in material breach of the Lease. Upon such payment in full and payment of any other amounts then due hereunder, Lessor will transfer to Lessee, without recourse or warranty (except for the absence of Lessor Liens), all of the Lessor’s right, title, and interest in and to the Equipment. Lessor’s standard terms and conditions shall apply to such sale of the Equipment, provided that the title to the Equipment will pass by this section of the Lease.
- MAINTENANCE & REPAIRS – Lessee, at its own cost and expense, shall maintain, service, repair, and overhaul the Equipment. Lessee shall not remove, alter, disfigure or cover up any numbering, lettering, or logo displayed upon the equipment and shall see that the equipment is not subjected to careless, unusually, or needlessly rough usage; and The expense of all repairs made during the Term, including labor, material, parts, and other items shall be paid by Lessee.
- TAXES, FEES & ASSESSMENTS – This is a net lease, and Lessee intends the rental payments hereunder to be net to Lessor. Lessee shall pay all license fees, assessments, sales, use, property and excise, and other taxes or hereafter imposed relating to Lessee’s use or possession of the equipment.
- INSURANCE – Lessee shall keep the equipment insured against all risks of loss or damage from every cause whatsoever for not less than the total replacement value thereof; and shall carry public liability and property damage insurance covering the equipment and its operation and handling for the amount of at least Five Hundred Thousand Dollars (US$500,000.00) or other reasonable amount specified by Lessor. Lessee shall pay the premiums and any deductible portions and deliver said policies, or duplicates thereof, to Lessor.
- INSPECTION – Lessee shall inspect the equipment within three (3) business days after receipt. Unless Lessee, within the said period, gives written notice to Lessor, specifying any defect in or other proper objection to the equipment. Lessee agrees that it shall be conclusively presumed, as between Lessor and Lessee, that Lessee has thoroughly inspected and acknowledged that the equipment is in full compliance with the terms of this agreement, in good condition, and repair and that Lessee is satisfied with and has accepted the equipment in such good condition and repair. Lessor shall have the right at any time to enter the premises occupied by the equipment and shall be given free access to it and afforded necessary facilities for inspection.
- PRODUCT MODELS AND SPECIFICATIONS. The goods offered by the manufacturers represented by BuildingPoint change from time to time, and BuildingPoint may not carry all manufactured goods. The customer acknowledges that models may be discontinued without prior notice, and replacement parts may not always be or remain available. BuildingPoint has no obligation to retain previous offerings or to incorporate modifications to Products sold previously.
- USE OF DATA. The customer shall treat all drawings and data submitted by BuildingPoint about design as confidential. The customer shall not give or show such drawings or data to others unless specifically approved by an authorized BuildingPoint employee. All such drawings and data shall remain BuildingPoint’s property.
- NOTICE. Any notice sent to BuildingPoint shall be forwarded to BuildingPoint Mid-America, LLC, 4415 Poplar Level Road, Louisville, Kentucky 40213. BuildingPoint shall provide information to the Customer at the address listed on the Sales Order.
- GENERAL. This Agreement and the Sales Order shall be governed by and construed by and governed by the law of the state of BuildingPoint’s accepting office as if it were executed and performed entirely within the State of BuildingPoint’s assuming office and shall be construed to be between merchants. Any assignment of the Agreement and Sales Order or any rights or obligations thereunder by Customer without the prior written consent of BuildingPoint shall be void. Except as expressly provided to the contrary in writing, the provisions of the agreement between Customer and BuildingPoint are for the benefit of the parties hereto and not for any other person. No waiver by BuildingPoint of any breach of any provision of the Agreement or Sales Order will constitute a waiver of any other breach. The terms and conditions set forth herein and in the Sales Order contain all the representations, stipulations, warranties, agreements, and understandings concerning the subject matter of the agreement between the Customer and BuildingPoint, and its execution has not been induced by any representation, stipulation, warranty, arrangement or understanding (including any course of prior dealings between the parties hereto) of any kind other than those set forth above. No waiver, modification, or addition to these terms and conditions, or any assignment of Customer’s rights or obligations hereunder, shall be valid or binding on BuildingPoint unless in writing and signed by an authorized BuildingPoint representative. An authorized employee in writing may not modify a Sales Order. BuildingPoint reserves the right to correct clerical errors.
