These Terms and Conditions control and govern the sale of Product (as defined herein) provided by Acme Brick Company (“Company”) to the customer, person, or entity to which a sale or quotation is provided (“Purchaser”). Goods, products & or materials ordered or sold by Company to Purchaser shall be referred to as (“Product”). These Terms and Conditions contain the complete agreement between the Company and the Purchaser, and Company expressly limits its acceptance to these terms and conditions. Additional or different terms in a document issued by the Purchaser shall not be binding on Company. To the extent these terms and conditions are inconsistent with those contained in any other document, invoice, or contract, these terms and conditions shall govern the entire transaction and dealings of the parties. Waiver of any breach of these terms and conditions shall not be construed as a waiver of any other breach.
- Estimates and Quotations. A sales associate may provide an estimate for Product or other materials to Purchaser. Quotations are subject to change without notice unless otherwise specified in writing. Quotations should not be considered a total job price or quantity. IT IS THE PURCHASER’S RESPONSIBILITY TO ORDER THE CORRECT QUANTITIES FOR EACH JOB. All purchase orders are subject to approval and acceptance by an authorized representative of Company and the Company’s credit department.
- Job Match. Purchaser agrees that Company is not responsible for new brick work matching older brick work.
- Freight and Handling. Company reserves the right to charge a delivery charge based on unit quantity, retail dollar amount, distance, or any other factor affecting delivery expenses. All quotations, orders, and sales are subject to addition of lawful shipping costs and freight rates (“Freight”) at time shipped. Any increase in Freight costs may be charged to Purchaser on any portion of the order remaining unshipped at the time such increase becomes effective. Company reserves the right to add a surcharge to prices and/or Freight rate to cover increases in fuel and energy costs. Company reserves the right to obtain prepayments for all such Freight.
- Delivery and Title. Delivery dates are approximate and based upon availability of Product and Company’s prompt receipt of all necessary information from Purchaser. Company does not warrant delivery by any specific date. Unless otherwise specified by Company, delivery will be made, and title will pass to Purchaser upon Company’s delivery of the Product to the location specified by Purchaser in a purchase order or Purchaser picking up the Product from Company’s location. If any Product is shipped by railroad, common carrier, or other manner specified by Purchaser or not controlled by Company, then Company shall not be responsible for any shortage or damage incurred in transit and any loss or damage sustained must be immediately reported to Purchaser’s carrier and not with Company. Company reserves the right to make deliveries in installments. All such installments may be separately invoiced and paid for when due, without regard to subsequent deliveries. A delay in delivery of any installment shall not relieve Purchaser of the obligation to accept and pay for remaining deliveries.
- Force Majeure. Company shall not be liable for any damages due to any failure or delay in manufacture, shipment, or delivery of Product, including, but not limited to, failure or delays due to acts of God, weather conditions, provisions of law or governmental regulations, pandemic, accident, explosion, fire, windstorm, flood or other casualty, strike, lockout, or other labor issue, riot, terrorism, war, insurrection, shortage of or inability to secure labor, raw materials, production or transportation facilities. In the event of Force Majeure, the time for performance will extend for such time as reasonably necessary to enable Company to perform. Company may, during any period of shortage due to any of the above circumstances, allocate its available supply of Products among itself and its purchasers in such manner as Company, in its sole judgement, deems fair and equitable.
- Termination. Company may suspend performance, cease deliveries, or terminate these Terms and Conditions or any purchase order, in whole or in part, at any time, without liability, if:
(a) Purchaser breaches or defaults under these Terms and Conditions or any other agreement with Company;
(b) Purchaser files, or has filed against it, a petition under any law relating to bankruptcy, insolvency, or reorganization;
(c) Purchaser makes an assignment for the benefit of creditors;
(d) a receiver, trustee, or similar officer is appointed for Purchaser or for a substantial part of Purchaser’s assets; or
(e) Company has reasonable grounds for insecurity regarding Purchaser’s ability to perform its obligations and Purchaser fails to provide adequate assurances of performance within ten (10) days after Company’s written request.
Company’s rights and remedies are cumulative and not exclusive, and are in addition to any other rights or remedies available at law or in equity. Termination shall not affect any rights or obligations that accrued prior to the effective date of termination.
- Inspection. Purchaser shall count and inspect Product and notify Company within three (3) business days of delivery or before any Product is unpackaged, installed, or otherwise disturbed, whichever occurs first (“Inspection Period”), of any shortage, damage, or claim that the Product does not conform to a purchase order (“Nonconforming Product”). Company shall have an opportunity to inspect, and in no event shall Company be liable unless given notice and time to inspect prior to any of the Product being used or packaging disturbed. If Purchaser fails to give notice of a claim within the Inspection Period, Company shall not be liable, and Purchaser will be deemed to have accepted the Product. FOR THE AVOIDANCE OF DOUBT, USE OF PRODUCTS CONSTITUTES ACCEPTANCE.
- Payment. Payment shall be due and payable thirty (30) days after Company’s delivery of an invoice. All payments shall be made without abatement, deduction, discount or setoff. Any federal, state or local Tax in effect at the time of delivery shall be added to the price and paid by Purchaser. If an exemption to taxes is claimed, documentation of the exemption shall be provided to Company at the time the order is placed. If appropriate documentation is not received by Company prior to shipping/delivery, Purchaser agrees to payment of taxes. Should the financial responsibility/stability of Purchaser at any time become unsatisfactory to Company, Company shall have the right to require payment for any shipment in advance or with satisfactory security. If Purchaser fails to make payment in accordance with these terms and conditions or fails to comply with any provision hereof, Company may, at its option, in addition to other remedies, cancel any unshipped portion of the order. Purchaser shall remain liable for all undelivered product if special ordered. In the event Purchaser fails to make payment in accordance with these terms and conditions, the account shall be deemed delinquent and a late charge of one and one-half percent (1 ½%) per month will be added to the outstanding balances on all balances outstanding for thirty (30) days or more. Purchaser agrees to pay all collection costs and expenses, including reasonable attorney’s fees, incurred by Company in collecting or attempting to collect such account.
- Warranty. Company warrants that the Products materially conform to the description and specifications, if any, in a purchase order. Company warrants that all Products purchased for residential use are manufactured to the specifications applicable to the Product of the American Society for Testing Materials (“ASTM”) and/or the Facing Tile Institute such that the Products do not fail structurally. Products that do not conform to the ASTM are defective (“Defective Product”). The foregoing warranty does not apply to Products purchased for commercial use. Company makes no other representation or warranties regarding the Product. NO WARRANTY OTHER THAN THOSE PROVIDED BY MANUFACTURER OF PRODUCT, IF ANY, IS PROVIDED ON PRODUCT. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, HABITABILITY, WORKMANSHIP OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED BY COMPANY AND WAIVED BY PURCHASER. IN NO EVENT SHALL COMPANY BE LIABLE UNDER ANY THEORY OR REMEDY, (CONTRACT, IMPLIED WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY) FOR ANY PUNITIVE, LOST PROFITS, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING FROM OR IN CONNECTION WITH THE PRODUCT OR ITS USE. Purchaser further agrees that Company’s liability for breach of warranty, breach of contract, negligence or otherwise, is expressly limited as follows, at the sole option of Company: (A) THE REPLACEMENT OF ANY PRODUCTS DETERMINED TO BE DEFECTIVE PRODUCTS OR NONCONFORMING PRODUCTS, (B) THE REPAIR OF SUCH DEFECTIVE PRODUCTS OR NONCONFORMING PRODUCTS OR (C) THE REFUND OR CREDIT TO PURCHASER OF THE PRICE OF SUCH DEFECTIVE PRODUCTS OR NONCONFORMING PRODUCTS.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Indemnification. Purchaser shall defend, indemnify, and hold harmless Company, its affiliates, and their respective officers, directors, members, managers, representatives, agents, and employees from and against any and all third-party claims, suits, demands, losses, liabilities, damages (including personal injury or death), and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of or relating to:
(a) Purchaser’s use, handling, storage, installation, or application of the Products;
(b) Purchaser’s violation of any applicable law, regulation, or building code;
(c) Purchaser’s breach of these Terms and Conditions; or
(d) Products that have been subjected to:
- improper installation or storage;
- accident, damage, abuse, or misuse;
- abnormal or unintended applications;
- repairs, alterations, or modifications made without Company’s prior written consent;
- any use or application inconsistent with Company’s instructions or specifications;
- use of improper mortar, failure or deterioration of mortar, improper building practices, or deficient masonry workmanship;
- non-compliance with applicable building codes or industry standards;
- vandalism, collision, war, civil unrest, or other intentional or accidental acts;
- fire, flood, storm, earthquake, tornado, hurricane, lightning, or other acts of God;
- pollution, environmental exposure, or acid rain; or
- Products that have been painted, unless painted in accordance with Company’s Technical Bulletin titled “Guidelines for Painting Brick.”
- Limitation of Liability. COMPANY SHALL NOT BE LIABLE TO PURCHASER OR ANY OTHER PERSON OR ENTITY FOR ANY INCIDENTAL,CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OR ANY OTHER LOSSES, DAMAGES OR EXPENSES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE PRICE RECEIVED BY COMPANY FOR THE PRODUCTS WITH RESPECT TO WHICH SUCH LIABILITY IS CLAIMED.
- Cancellation and Returns. Products may not be returned without prior written authorization of Company and in compliance with Company’s return policies and procedures then in effect. Excess or mistakenly ordered Product cannot be returned without the consent of an authorized representative of Company. Any approved return of Product is subject to restocking charges and provisions of the delivery and return policies at the location where the order was placed. All purchase orders for any special ordered, custom ordered, discontinued product, or non-Company, including without limitation, third-party manufactured Products or the manufacture of any non-standard Company Product, including any special sizes, shapes, shading, blending or textures (“Special-Order Products”) shall not be cancellable in whole or part. Shipment of Product cannot be extended beyond the original shipping date specified without the prior written consent of Company. If Company agrees to pick up returned brick, it will do so in full and functional packages (cubes) only, and only if the brick is accessible to Company’s equipment. Company reserves the right to cancel any purchase orders upon 10 days’ notice to Purchaser.
- Jury Waiver, Choice of Law, and Venue. These terms and conditions will be governed by the laws of the State of Texas. Each party hereto agrees that the exclusive venue and forum for any action brought in connection with these terms and conditions or related purchase order shall be any State or Federal court located in Tarrant County, Texas and irrevocably waives any right such party may have to object to such venue and forum. EACH PARTY HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR RELATED PURCHASE ORDER.
- Modification. Purchaser agrees that these terms and conditions shall constitute the entire agreement and understanding by the parties and comprises the complete and exclusive statement of the terms of sale and cancels and supersedes any prior agreements, representations, statements, opinions and promises and shall merge herein all prior agreements, representations, negotiations, and understandings whatsoever. NO TERMS AND CONDITIONS IN ANY WAY ALTERING OR MODIFYING THE PROVISIONS HEREOF SHALL BE BINDING UPON COMPANY UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY. NO MODIFICATION OR ALTERATION OF THE PROVISIONS HEREOF SHALL RESULT FROM COMPANY’S SHIPMENT OF PRODUCTS FOLLOWING RECEIPT OF PURCHASER’S PURCHASE ORDER, SHIPPING ORDER, OR OTHER FORMS CONTAINING PROVISIONS, TERMS AND CONDITIONS IN ADDITION TO OR IN CONFLICT OR INCONSISTENT WITH THE PROVISIONS HEREOF.
- CMU Manufactured Block Surcharge. Company participates in the CMU Checkoff Program. A one cent ($.01) per masonry unit goes to the Concrete Masonry Checkoff Board pursuant to the Concrete Masonry Products Research, Education, and Promotion Act of 2018.