CHESAPEAKE PLYWOOD, LLC
TERMS AND CONDITIONS
1. GENERAL. The following terms and conditions (“Terms and Conditions”) cover all sales of products and rendering of services by Chesapeake Plywood, LLC (“Seller”) to the customer or purchaser (the “Customer”) of goods or services identified in the written agreement, proposal, task order, purchase order or other ordering document to which these Terms and Conditions are attached and/or referenced (the “Proposal”). These Terms and Conditions together with the Proposal and any other written agreement signed by Seller and Customer relating to the purchase of products and/or services by Customer from Seller, constitute the entire agreement between Seller and Customer and are referred to herein collectively as the “Agreement.” If these Terms and Conditions conflict with any other provision of the Agreement, the Agreement will govern unless and to the extent otherwise expressly agreed by Seller in a document signed by Seller. No waiver, amendment or modification of the Terms and Conditions hereof will be effective unless in writing and signed by both parties; and, in the case of Seller, no such waiver, amendment or modification will be effective unless signed by an officer of Seller. No purchase order or other ordering document, terms and conditions, or other document supplied by the Customer will add to, vary, modify or amend these terms and conditions unless signed by Seller.
2. CREDIT AND TERMS OF PAYMENT. Seller will not accept any orders which are less than $500. Unless otherwise specified, terms of payment are net cash, thirty (30) days after date of invoice. Any invoice not paid within thirty (30) days is subject to a late payment fee of one and one-half percent (1 1/2%) per month, or, if such rate exceeds that permitted by applicable law, then the highest lawful rate. Customer will also reimburse Seller for all collection costs on any delinquent accounts, including, without limitation, attorneys’ fees and court costs. Any overdue payment must be paid before additional shipments are made, and Seller reserves the right to cancel any order or refuse to accept or fill any order then outstanding until payment of overdue amounts are paid. In the event that Seller, in its sole and absolute discretion, deems Customer’s credit to be unsatisfactory, Seller shall have the right to (a) limit the amount of credit which Seller extends to Customer, and delay the delivery of products and/or rendering of services based upon such limitations; (b) require full or partial payment in advance; (c) deliver products to Customer C.O.D. or require payment to be secured by letters of credit; (d) require written guarantees or payment satisfactory to Seller; and/or (e) cancel or refuse to accept or fill any order from Customer then outstanding or thereafter placed.
3. TAXES. Unless specifically designated, prices do not include sales, use, excise, value-added or similar taxes applicable to sales or services hereunder, or their use by Customer or Customer’s own customers. Customer will be responsible for paying all such taxes, or, if Seller pays such taxes, invoices will be increased accordingly. Seller reserves the right to adjust the price at any time to correct any tax miscalculation and to issue to Customer an additional invoice with either a credit or an additional amount owed and Customer agrees to pay any additional amount owed according to this Agreement.
4. SHIPMENT. The Proposal will state whether the Customer will collect the goods from Seller or if the goods will be shipped to Seller. If the goods are shipped, shipment will be made by common carrier, Seller’s affiliate of the Seller, or by Seller to Customer’s F.O.B. point of shipment from Seller’s warehouse. Risk of loss or damage will pass to the Customer upon delivery by Seller to the carrier. Customer shall examine goods promptly upon receipt of delivery from the carrier. Prior to acceptance of goods, Customer shall advise the carrier and the Seller of any damages or shortages by noting such damages or shortages on the bill of lading or order confirmation. Failure to so advise the carrier and the Seller shall relieve Seller from any and all claims by Customer for shortages or damages and shall constitute a waiver by Customer of all claims with respect to said goods. All unloading shall be done by Customer. All demurrage for delays in unloading and responsibility for damages to persons or property resulting from such unloading shall be chargeable to Customer’s account. If Customer is not available to accept delivery of the goods on the agreed delivery date as set forth in the Proposal, then Customer shall pay a minimum fee of $250.
5. RETURN AND CANCELLATION. All sales are final. Customer may not cancel any order or return any products including but not limited to stock order goods, goods that have been special or custom ordered, custom manufactured, tested or configured.
6. EXCUSABLE DELAYS. Seller’s delivery dates are approximate and are based upon prompt receipt of all necessary information from Customer. Seller will not be in default and Seller will not be liable to the extent that, and for so long as, performance of Seller’s obligations under the Agreement are delayed, hindered, prevented, or rendered impracticable by any Force Majeure Event. For purposes of these Terms and Conditions, the term “Force Majeure Event” means any event or condition which is beyond the reasonable control of a either party, including, without limitation, the existence, outbreak, escalation or worsening of any act of war (declared or undeclared), hostility, civil disorder, riot, act of terrorism, sabotage, cyberattack, strike, lockout or other labor disturbance, natural disaster, flood, hurricane, earthquake and other elements of nature, acts of God or comparable events, epidemic, pandemic or disease outbreak (including the COVID-19 virus), delays or interruptions in transportation or congregations of people, or any statutes, laws, regulations, ordinances, orders, rules, or similar action issued or promulgated by any government, governmental agency, governmental instrumentality after the date of the Agreement.
7. GRANT OF SECURITY INTEREST. All products shall remain the property of Seller until invoice therefor has been paid in full. As security for payment of all prices, fees and other amounts due by Customer hereunder and performance of all Customer’s other obligations under the Agreement, Customer hereby grants to Seller and Seller hereby retains, a security interest under the applicable provisions of the Maryland Uniform Commercial Code in all property, both tangible and intangible, sold or supplied to Customer, including all proceeds (cash and non-cash, including insurance proceeds), products, substitutions, renewals and replacements of the foregoing. Seller has the right to file the Agreement as a financing statement or continuation statement in the applicable public records, and Customer agrees to execute any documents required by Seller to evidence or perfect the foregoing security interest, including individual blanket financing statements, continuation statements, chattel mortgages, or similar instruments, with respect to the security interest created hereby. Seller is hereby appointed Customer’s attorney-in-fact to do all acts and things which Seller may deem necessary or desirable to perfect and continue perfecting the security interest created hereby. Immediately upon default of any of Customer’s payment obligations hereunder, or any breach by Customer of any other covenant or obligation hereunder, Seller shall have, immediately and without notice or demand, in any jurisdiction in which enforcement hereof is sought, all the rights of a secured creditor under the Uniform Commercial Code or any similar law that may be applicable. Such remedies will include (without limitation), the right to enter upon any premises on which the property or any part thereof may be situated, and remove the same therefrom without any liability for suit, action or other proceeding. CUSTOMER HEREBY WAIVES ANY AND ALL RIGHTS TO PRIOR NOTICE AND TO JUDICIAL HEARING WITH RESPECT TO REPOSSESSION OF THE PROPERTY AND CUSTOMER, AT CUSTOMER’S EXPENSE SHALL ASSEMBLE AND DELIVER THE PROPERTY TO SUCH PLACE OR PLACES AS SELLER MAY DESIGNATE. It is mutually agreed that commercial reasonableness and good faith require Seller to give Customer no more than five (5) business days’ prior written notice of the time and place of any public disposition of the property or the time after which any private disposition or any other intended disposition is to be made. Without limiting any of Seller’s other rights hereunder, Customer agrees to pay all expenses (including, without limitation court costs and attorneys’ fees) incurred by Seller in exercising any of the foregoing rights and remedies. In addition to and not in limitation of, the foregoing rights and remedies, the Seller shall have all other rights and remedies available to it under applicable law and hereunder, including the right to institute any proceeding at law or in equity.
8. WARRANTIES. WITH RESPECT TO ANY PRODUCTS SOLD BY SELLER TO THE CUSTOMER, SELLER DISCLAIMS LIABILITY AND RESPONSIBILITY FOR ANY WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES FOR MERCHANTABILITY AND WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. SELLER DOES NOT MANUFACTURE THE PRODUCTS SOLD HEREUNDER AND DOES NOT HAVE THE CAPABILITY NOR THE OBLIGATION TO REPAIR OR REMEDY ANY DEFECT IN THE PRODUCTS. THE MANUFACTURER PROVIDES THE ONLY WARRANTIES FOR THE PRODUCTS AND, TO THE EXTENT SUCH WARRANTIES ARE IN EFFECT, THE MANUFACTURER IS THE ONLY AUTHORIZED SOURCE TO REPAIR OR REMEDY ANY DEFECT IN THE PRODUCTS CONSISTENT WITH THE TERMS AND CONDITIONS OF THE MANUFACTURER’S WARRANTIES.
FROM TIME TO TIME SELLER MAY, IN ITS SOLE AND ABSOLUTE DISCRETION, ASSIST THE CUSTOMER IN OBTAINING WARRANTY SERVICES ON THE PRODUCTS FROM THE MANUFACTURER, INCLUDING BUT NOT LIMITED TO, MAKING ARRANGEMENTS FOR THE RETURN OF THE PRODUCTS TO THE MANUFACTURER, OR THE REPAIR OF THE PRODUCTS BY THE MANUFACTURER. HOWEVER, SUCH ASSISTANCE BY SELLER SHALL NOT, UNDER ANY CIRCUMSTANCES, OBLIGATE SELLER FOR THE PERFORMANCE OF ANY WARRANTY WORK ON THE PRODUCTS OR IMPOSE ANY LIABILITY UPON SELLER FOR DEFECTIVE OR MALFUNCTIONING PRODUCTS. THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND RECOURSE FOR DEFECTIVE OR MALFUNCTIONING PRODUCTS IS TO OBTAIN WARRANTY WORK FROM THE MANUFACTURER.
ANY AFFIRMATION OF FACT OR PROMISE MADE BY SELLER SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY THAT THE PRODUCT SHALL CONFORM TO THE AFFIRMATION OR PROMISE. ANY DESCRIPTION OF THE PRODUCTS WHICH CONTAINS AN AFFIRMATION OF FACT OR PROMISE IS FOR THE SOLE PURPOSE OF IDENTIFYING THEM AND SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY THAT THE PRODUCTS SHALL CONFORM TO THE DESCRIPTION. ANY SAMPLE OR MODEL IS FOR ILLUSTRATIVE PURPOSES ONLY AND SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY THAT THE WHOLE OF THE PRODUCTS SHALL CONFORM TO THE SAMPLE OR MODEL, AND NO AFFIRMATION OR PROMISE, OR DESCRIPTION, OR SAMPLE OR MODEL SHALL BE DEEMED PART OF THE BASIS OF THE BARGAIN. CUSTOMER HEREBY ACKNOWLEDGES THAT THE PRODUCTS ARE MADE OF WOOD WHICH IS A NATURAL MATERIAL. NO TWO PIECES ARE EXACTLY THE SAME. WOOD VARIES GREATLY IN GRAIN PATTERN AND SOME FINISHES NATURALLY EXAGGERATE DIFFERENT DEFINING CHARACTERISTICS, SUCH AS, BUT NOT LIMITED TO, MINERAL DEPOSITS/STREAKS, KNOTS, SAP RUNS, PIN HOLES AND WORM HOLES. SELLER SHALL NOT BE LIABLE FOR ANY OF THE AFOREMENTIONED VARIATIONS IN THE PRODUCT DUE TO THE NATURAL CHARACTERISTICS OF THE WOOD.
9. LIMITATION OF DAMAGES. In no event, whether as a result of breach of contract, indemnity, warranty, tort (including Seller’s negligence), strict liability or otherwise, shall Seller’s liability to Customer for any loss or damage arising out of, or resulting from the Agreement, or from its performance or breach, or from the products or services furnished hereunder, exceed the price of the specific product or service which gives rise to the claim, and any such liability shall terminate upon the expiration of the warranty specified in Section 8 herein, entitled “Warranties.” As a precondition to a claim, the Customer must have first noted any damage or shortage on the bill of lading order confirmation in accordance with Section 4, hereof. Any such claim of liability must be timely commenced in a court of competent jurisdiction in accordance with the applicable statute of limitations, but in no event later than one (1) year from the termination of the said warranty. IN NO EVENT SHALL SELLER, ITS AFFILIATES, OFFICERS, AGENTS OR EMPLOYEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING FROM THE AGREEMENT, INCLUDING (WITHOUT LIMITATION) LOSS OF PROFITS OR REVENUES, INTERRUPTION OF BUSINESS, LOSS OF USE OF THE PRODUCTS OR ANY ASSOCIATED EQUIPMENT, MATERIALS, COMPONENTS OR PRODUCTS, DAMAGE TO ASSOCIATED EQUIPMENT, MATERIALS, COMPONENTS OR PRODUCTS, COST OF SUBSTITUTE PARTS, OR CLAIMS OF CUSTOMER’S CUSTOMERS FOR SUCH DAMAGES. CUSTOMER’S SOLE REMEDY FOR ANY LIABILITY OF SELLER OF ANY KIND IS LIMITED TO THE REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCTS OR SERVICES.
10. INDEMNIFICATION. Customer will indemnify and hold Seller, its officers, directors, employees, agents, successors and assigns harmless from and against all claims, liabilities, losses, damages, costs and expenses sustained by them (including court costs and attorneys’ fees) arising out of or in any way connected with the breach of the Agreement by Customer or any of its affiliates, employees, officers or agents.
11. WAIVER OF TRIAL BY JURY. Seller and Customer hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto, against the other on, or in respect of, or any matter whatsoever arising out of or in any way connected with the Agreement, the relationship between Seller and Customer hereunder, and the Customer’s use, purchase, and resale of any products purchased from Seller, and/or any claim of injury or damage.
12. MISCELLANEOUS. The Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legatees, personal representatives and other legal representatives, successors and assigns, except that Customer may not assign its rights or obligations hereunder without the prior written consent of Seller. No failure or delay of Seller to exercise any right or remedy pursuant to the Agreement shall affect such right or remedy or constitute a waiver by such party of any right or remedy thereto. Resort to one form of remedy shall not constitute a waiver of alternative remedies. If any provision hereof shall for any reason be held invalid or unenforceable by any court, governmental agency or arbiter of competent jurisdiction, such invalidity or unenforceability shall not affect any other provision hereof, but this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. The Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Maryland. The parties hereby consent to the jurisdiction and venue of the federal and state courts of the State of Maryland with venue in Howard County, Maryland, with respect to any matter arising from the Agreement.
Effective from May 10, 2022