Boise Cascade Building Materials Distribution, L.L.C.
1. COMPLETE TERMS. Sales by Boise Cascade Building Materials Distribution, L.L.C. (and its subsidiaries, as applicable), a subsidiary of Boise Cascade Company (“Boise Cascade”), are governed by these terms and conditions, unless the parties have entered into a mutually executed written agreement stating applicable terms and conditions. This is an offer conditioned on Buyer’s acceptance of all, and only, these terms. Boise Cascade objects to any different or additional terms. IF YOU DO NOT ACCEPT THESE TERMS OF SALE, PLEASE DO NOT ACCEPT DELIVERY OF THE IMPLICATED GOODS. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON SUCH DOCUMENT ISSUED BY BUYER AT ANY TIME ARE HEREBY OBJECTED TO BY BOISE CASCADE, SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON BOISE CASCADE. This is the final and complete expression of all terms and conditions of the agreement. Any representations, promises, warranties, or statements that are not contained here are void. These terms and conditions can be modified, waived, or amended only by writing signed by both Buyer and Boise Cascade.
2. TERMS OF PAYMENT. Payment is due according to the terms set forth on the invoice, unless the parties agree to other terms. If Buyer fails to pay any sum owed hereunder when due, interest shall accrue to Boise Cascade’s credit on such sum at the rate of 2% per month or the highest rate allowed by law, whichever is lower. If Boise Cascade, in its sole discretion, finds it necessary to employ an attorney and/or collection agency to collect any past due sum owed hereunder, it may collect, in addition to any other sum owed hereunder, a reasonable attorney’s fee and/or collection agency fee.
3. FINANCIAL RESPONSIBILITY. Any credit terms offered by Boise Cascade are available only for so long as Buyer complies with all of its obligations under these terms and conditions, including, without limitation, the provisions requiring timely payment of invoices within stated terms. If credit terms are no longer available, Buyer shall pay cash in advance for all purchases. If Boise Cascade shall have any doubt at any time as to Buyer’s financial responsibility, Boise Cascade, at its option, either may (a) decline to make further shipments except upon receipt of cash in advance or upon giving of other security satisfactory to Boise Cascade, or (b) terminate this sale. Nothing in this paragraph is intended to affect the obligation of Buyer to accept and pay for the goods.
4. NO DEDUCTION. Buyer shall not be entitled to deduct from the price invoiced to it by Boise Cascade the amount of any claim asserted by Buyer against Boise Cascade, unless such claim shall have been allowed, in writing, by Boise Cascade. The provisions of the preceding sentence are of the essence of this sale.
5. LIMITED WARRANTY. Goods are warranted to comply with the warranty and specifications of the original manufacturer or producer of the goods. Should any product sold hereunder be found not to meet the foregoing warranty, Boise Cascade will take such action as is specified in the warranty of the original manufacturer or producer, or, at Boise Cascade’s election, make a fair allowance therefor. Written notice of any claim under this warranty must be given to Boise Cascade within the time specified in the warranty of the original manufacturer or producer, and Buyer must afford Boise Cascade a reasonable opportunity to inspect the goods in unaltered condition and evaluate the claims in accordance with procedures specified in the original manufacturer’s or producer’s warranty.
NO WARRANTIES EXTEND BEYOND THE FOREGOING WHICH ARE EXTENDED IN LIEU OF AND TO EXCLUSION OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND BOISE CASCADE’S SOLE RESPONSIBILITY THEREUNDER IS AS STATED. BOISE CASCADE SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES, OR FOR ANY AMOUNT IN EXCESS OF THE PRICE FOR THE GOODS INVOLVED, UNDER THE FOREGOING WARRANTY OR ANY OTHER PART OF THIS AGREEMENT. BOISE CASCADE EXPRESSLY DISCLAIMS ANY IMPLIED OR EXPRESS WARRANTY THAT A PRODUCT WILL NOT SUPPORT MOLD. BUYER EXPRESSLY UNDERSTANDS AND AGREES THAT BOISE CASCADE DOES NOT WARRANT THAT THE SERVICES OR RELATED GOODS ARE FREE OF CLAIMS OF PATENT, TRADEMARK, TRADE SECRET, OR COPYRIGHT INFRINGEMENT BY A THIRD PARTY. BOISE CASCADE HEREBY DISCLAIMS ANY SUCH WARRANTIES OR INDEMNIFICATION FOR SUCH INFRINGEMENT(S) OF INTELLECTUAL PROPERTY RIGHTS, NO LICENSES, EXPRESS OR IMPLIED, TO ANY BOISE CASCADE INTELLECTUAL PROPERTY ARE GRANTED HEREBY OTHER THAN THOSE THAT ACCOMPANY THE LAWFUL PURCHASE AND SALE TRANSACTION.
Buyer agrees to indemnify and hold Boise Cascade harmless from all claims, judgments, liabilities, expenses, or costs arising from Buyer’s breach of these terms and conditions of sale and/or acts or omissions.
6. REMEDIES. Buyer’s remedies shall be limited to replacement by Boise Cascade of the goods involved or, at Boise Cascade’s option, return by Boise Cascade to Buyer of the purchase price of the goods involved in such breach. UNDER NO CIRCUMSTANCES SHALL BOISE CASCADE BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES WHICH ARE SUFFERED BY BUYER OR ANY OTHER PERSON WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE. ANY LEGAL ACTION AGAINST BOISE CASCADE FOR BREACH OF THESE TERMS OF SALE, INCLUDING ANY WARRANTIES, MUST BE INSTITUTED WITHIN ONE YEAR AFTER DELIVERY OF GOODS.
7. TITLE AND RISK. Boise Cascade warrants it has and will convey good and marketable title to the goods. Irrespective of any provisions concerning freight or price, title and risk of loss or damage shall pass to Buyer as follows: (A) if the shipment of goods originates at the manufacturer’s place of business, then upon delivery of such goods to the carrier, or (B) if the shipment of goods originates at a Boise Cascade facility, then upon delivery of such goods to the shipping destination.
8. DELIVERY. Boise Cascade reserves the right to route all shipments and may assist Buyer in processing claims against carriers, without incurring liability therefor. Prices stated “F.O.B. delivered” include costs of transportation to the “consigned to/ship to” location specified in Boise Cascade’s Pick Ticket/Bill of Lading. Any increase in delivery costs resulting from Buyer’s instructions to the carrier and any extra costs of utilizing substitute methods of delivery, when the intended type of carrier or loading or unloading facilities become unavailable, shall be for Buyer’s account. Buyer shall be responsible for securing any empty railcar leaving Buyer’s location as required by the applicable carrier. Any fines, impositions, tariffs, interest, costs, or the like due to Buyer’s failure to so secure any empty railcar shall be Buyer’s sole responsibility. Buyer shall indemnify and hold Boise Cascade harmless from any such fines, impositions, tariffs, interest, costs, or the like in accordance with Section 5.
9. DELAYS. In the event Boise Cascade is unable to ship the ordered goods because of fire, flood, windstorm, or other act of God, labor or civil disturbance, shortage of raw materials, failure of timely delivery by Boise Cascade’s suppliers, energy or transportation shortages, or any other cause whether or not similar to the causes listed above, beyond Boise Cascade’s reasonable control, Boise Cascade reserves the right to cancel the affected order without any liability to Buyer whatsoever. In no event shall Boise Cascade be obligated to purchase material from others to enable Boise Cascade to deliver goods to Buyer hereunder.
10. DEFAULT. Buyer will be in default if (a) Buyer fails to pay to Boise Cascade any amount when due under this agreement, (b) Buyer fails for a period of five days after receiving written notice from Boise Cascade to fulfill or perform any provisions of this agreement (other than the prior provision relating to due date of payments), (c) Buyer becomes insolvent or bankrupt, or a petition therefor is filed voluntarily or involuntarily and not dismissed within 30 days from filing, or (d) Buyer makes a general assignment for the benefit of its creditors, or a receiver is appointed, or a substantial part of Buyer’s assets are attached or seized under legal process and not released within 30 days thereafter.
Upon Buyer’s default, Boise Cascade may, at its option, without prejudice to any of its other rights and remedies, and without demand for payments past due, (a) make shipments subject to receipt of cash in advance, (b) terminate this agreement and declare immediately due and payable the obligations of Buyer for products previously shipped, notwithstanding any other provision in these terms and conditions, (c) demand reclamation, and/or (d) suspend any further deliveries until the default is corrected, without releasing Buyer from its obligations under this agreement. In any event, Buyer shall remain liable for all loss and damage sustained by Boise Cascade because of Buyer’s default, including, but not limited to, collection fees, reasonable attorneys’ fees, and interest at the lower of 2% per month or the highest amount allowed by applicable law.
11. MATERIAL SAFETY DATA SHEET (MSDS). Buyer will familiarize itself with all information and precautions disclosed in safety and health information, including, but not limited to, any MSDS, transmitted to Buyer by Boise Cascade, or any information supplied to Buyer by Boise Cascade or otherwise available to Buyer from Boise Cascade at any time.
12. TAXES. All sales, excise, or other forms of taxes, including tariffs, levied against this transaction (collectively, “Taxes”), shall be paid by Buyer over and above all other sums Buyer may be or may become obligated to pay hereunder. Taxes shall at all times be the responsibility of Buyer, whether calculated at the time of Buyer’s purchase or upon delivery to Buyer. Buyer acknowledges and agrees to pay all such Taxes passed through to Buyer.
13. PRODUCT PROTECTION. To avoid mold growth, building materials must be protected from moisture exposure according to industry customs during transit, storage, and use, including without limitation, transit to, storage at, and use on a jobsite. Untreated green wood products will support mold growth.
14. DESIGNATED COPYRIGHT AGENT. Boise Cascade’s DMCA Designated Agent to receive notifications of claimed infringement is: Attn: General Counsel, Boise Cascade Company, 1111 W. Jefferson St., Suite 300, Boise, ID 83702; email: [email protected]. See also DMCA Designated Agent Directory.
15. MUTUALITY. Except as provided in Section 4, all debts and obligations of Buyer and Boise Cascade to each other are mutual and subject to setoff. For purposes of this paragraph, “Buyer” and “Boise Cascade” shall be deemed to include each party’s respective subsidiaries and affiliates which directly or indirectly control or are controlled by that party through 100% equity ownership.
16. GOVERNING LAW. Any transaction subject to these terms and conditions shall be governed by the laws of state in which the Boise Cascade facility that shipped the goods is located.