Terms and Conditions of Sale

ALL PRODUCTS AND SERVICES SOLD BY EASTERN CONSTRUCTION MATERIALS OR ITS SUBSIDIARIES OR AFFILIATES ("SELLER") ARE EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW. ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS SET FORTH IN BUYER'S PURCHASE ORDER, ANY COMMUNICATIONS BETWEEN THE PARTIES OR ANY OTHER AGREEMENT OR DOCUMENTATION BETWEEN THE PARTIES SHALL NOT BE BINDING ON SELLER UNLESS AGREED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SELLER AND EXPRESSLY STATED TO APPLY TO SUCH PRODUCTS OR SERVICES. BUYER'S ACCEPTANCE OF SHIPMENT OR PERFORMANCE AND/OR PAYMENT FOR THE PRODUCTS OR SERVICES CONSTITUTES ACCEPTANCE OF SELLER’S TERMS AND CONDITIONS. 

1.  Payment Terms.

(a)  Payment terms are set on a by customer basis as either Due on Receipt, Net 10, Net 15, or Net 30..

(b)  Any invoiced amount not paid when due shall be subject to interest commencing on the date that such amount was due equal to 1.5% per month (which is equivalent to 18% per year) or the highest rate that is permitted by applicable law, if the foregoing rate exceeds such permitted rate.

(d)  Seller shall be entitled to reimbursement from Buyer of all internal and external collection costs and expenses (including, but not limited to, legal fees and court costs) incurred by Seller in connection with collection of the Purchase Price from Buyer.

(e)  Seller reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance of performance from Buyer without liability to Seller in the event of: (i) Buyer's insolvency; (ii) the filing of a voluntary petition in bankruptcy by Buyer; (iii) the appointment of a receiver or trustee for Buyer; or (iv) the execution by Buyer of an assignment for the benefit of creditors. Seller reserves the right to suspend its performance hereunder until such payment or adequate assurance of performance has been received. Seller also reserves the right to cancel Buyer's credit at any time for any reason.

2.  Delivery, Risk of Loss and Title.

 (a)  Any delivery dates are estimates and shall not be deemed to represent fixed or guaranteed deadlines.

(b)  All legal title to, right to possession of and beneficial ownership of any products sold hereunder shall pass from Seller to Buyer upon delivery of such products to Buyer  unless Buyer arranges for shipment of the products, in which case title shall pass from Seller to Buyer at the time that the products are loaded onto the carrier’s delivery vehicle at Seller’s facility.

(c)  All risk of loss with respect to any products sold hereunder shall pass from Seller to Buyer at the time that title passes in accordance with Section 2(b) hereof unless Buyer arranges for shipment of the products, in which case risk of loss shall pass from Seller to Buyer at the time that the products are loaded onto the carrier’s delivery vehicle at Seller’s facility.

3.  Limitation of Warranties.

(a) Seller warrants that products and services furnished herein will be of good quality and new unless the Buyer requires or permits otherwise, and will be free from defects. Seller’s warranty excludes remedy for damage or defect caused by abuse, alterations to products or services, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. 

(b) ASIDE FROM THE WARRANTY SET FORTH IN 3(A), THERE ARE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, PROVIDED BY SELLER AND SELLER EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABLE QUALITY, FITNESS FOR PURPOSE AND NON-INFRINGEMENT, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. 

4.  Limitation of Liability.  

(a)  Seller’s liability for any loss or damage arising out of or relating to these terms and conditions (including, without limitation, for any breach of these terms and conditions), the sale of products or services pursuant to these terms or conditions, or otherwise in connection with the provision of any products or services hereunder or the sale, resale, operation or use of such products or services, shall be limited to the dollar amount paid by Buyer to Seller for the products or services that gave rise to such loss or damage.  Seller shall not be liable to Buyer for special, liquidated, indirect, punitive or consequential damages including, but not limited to, lost profits, lost revenue, lost institutional operating savings, loss of goodwill or reputation, loss of use, the costs of procuring substitute products or services, claims of customers, sorting charges or government taxes or fines, even if Buyer has been advised of the possibility of such damages in advance.  The limitations of liability set forth in this apply regardless of the nature of the claim, whether arising in contract or tort, negligence, gross negligence, strict liability, fundamental breach or otherwise.

(b)  THE LIMITATION OF LIABILITY SET FORTH HEREIN REFLECTS A DELIBERATE AND BARGAINED FOR ALLOCATION OF RISKS BETWEEN SELLER AND BUYER AND CONSTITUTES THE BASIS OF THE PARTIES' BARGAIN, WITHOUT WHICH SELLER WOULD NOT HAVE AGREED TO THE PRICE OR TERMS OF THIS CONTRACT.

5.  Excusable Failure.  Neither party shall be liable for its delay or failure in performing hereunder due to contingencies beyond its reasonable control, including, without limitation, acts of God, fires, floods, war, acts of terrorism, pandemics, epidemics, sabotage, accidents, labor disputes or shortages, governmental laws, ordinances, rules and regulations, whether valid or invalid (and including, but not limited to, import or export prohibitions or limitations, priorities, requisitions, allocations and price adjustment restrictions) and inability to obtain material, equipment or transportation, and any other similar or dissimilar contingency.

7.  Entire Agreement.  These terms and conditions, along with the accompany invoice, constitute the entire agreement between the Buyer and the Seller relating to the subject matter hereof and supersede all prior understandings whether written, oral or electronic, if any, between the parties.  These terms and conditions shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto. 

8.  Relationship of the Parties.  Seller’s relationship to Buyer shall be that of an independent contractor.  Neither party shall be deemed to be nor shall either represent itself to be an agent of the other.  All services provided by Seller shall be performed by such employees, representatives or agents of Seller as Seller determines, in its sole discretion, are necessary to complete its obligations under the contract for services described herein.

9.  Governing Law. The validity, interpretation and performance of the terms hereof with respect to any product delivered (or to be delivered) hereunder shall be governed by the laws of the State of New York, without regard to conflict of laws principals, and venued in the Supreme Court, Dutchess County or, if brought in Federal Court, the White Plains division of the Southern District of New York.

10.  Amendment and Waiver.  No modification or waiver of the terms and conditions hereof shall be binding upon Seller unless approved in writing by an authorized representative of Seller, nor shall any modification or waiver be affected merely by the acknowledgment or acceptance of purchase order forms containing other or different terms, whether or not signed by an authorized representative of Seller.

11.  Severability.  The invalidity of any provision of these terms and conditions shall not invalidate the parties’ agreement or any of the remaining provisions. If it is determined that any provision of these terms and conditions violates any law, or is otherwise invalid or unenforceable, then that provision shall be revised to the extent necessary to make that provision legal and enforceable. In such case the document(s) shall be construed, to the fullest extent permitted by law, to give effect to the parties' intentions and purposes in executing the agreement.