Effective January 1, 2024

1. The Parties. The following provisions set forth the terms and conditions (the “Terms and Conditions”) by which STERLING SITE ACCESS SOLUTIONS, LLC, an Illinois limited liability company and its Sterling Structural division, with principal offices located at 501 E. 151st St., Phoenix, Illinois, 60426, together with its affiliated companies, (the “Company”), shall, as the case may be, sell to the buyer (the “Buyer”) identified on the applicable quotation between Buyer and Company (the “Quotation”), the Company’s structural panel products more particularly described on the Quotation (the “Product”). The Buyer and Company shall be collectively referred to herein as the “Parties”.
2. Agreement. The Quotation, these Terms & Conditions, and any attachments hereto or thereto, represent the entire agreement between Company and the Buyer with respect to the purchase of Product and supersedes any prior oral or written agreements or discussions; may not be modified or amended unless in writing and signed by each of the Parties; and may not be assigned by Buyer without the written consent of the Company, which consent will not be unreasonably withheld. This Agreement shall commence on the date the Buyer accepts the Quotation. Unless specifically incorporated in a writing signed between the Parties, any terms and conditions of a Buyer purchase order or other writing are not considered part of these Terms and Conditions of the agreement for supply of Product between the Company and the Buyer.
3. Confidentiality. The Quotation, these Terms and Conditions for the purchase of Products and any documentation provided to Buyer by Company regarding the Product’s materials and composition are considered “Confidential Information”. Without the prior written consent of the Company, Buyer shall not (i) use such Confidential Information for any purpose other than the purpose of purchasing the Products from Company, or (ii) disclose such Confidential information to any third party, except to (A) Buyer’s legal or business advisors acting under a duty of confidentiality, or (B) as required by law, provided that nothing herein shall preclude either Party from announcing the existence of the agreement between Buyer and Company for Buyer’s purchase of Products.
4. Quote Expiration. Quotations provided by Company are valid for 14 days from the date set forth on the Quotation provided by Company to Buyer, unless a different period is expressly specified on such Quotation, in which case such period will apply. No changes will be made to an accepted Quotation following Buyer’s acceptance of such Quotation, unless expressly agreed to in writing signed by the Parties.
5. Sales and Use Taxes. The Buyer will pay all applicable sales and use taxes applicable to the purchase of the Product. Taxes will be separately shown on the Quotation and any invoices for the purchase of Products by Buyer. If the Buyer is exempt from any or all sales or use taxes, Buyer will provide Company with a copy of the sales exemption certificate prior to Buyer’s first payment.
6. Shipment, Delivery, Title, and Risk of Loss. Unless otherwise agreed to in a writing signed by Buyer and Company, all shipments of Products will be Free on Board (FOB) Incoterms 2020, or its equivalent for delivery by land, to the Company’s designated shipping point set forth on the Quotation. The title to, and risk of loss with respect to, the Products shall transfer to Buyer at the Company’s designated shipping point referenced in the prior sentence. Unloading materials is the responsibility of the Buyer. Buyer is responsible to protect product from staining, damage, or discoloration associated with storing and handling materials.
7. Payments. Unless otherwise stated on the Quotation, Buyer agrees to pay Company a non-refundable deposit of 50% of the total price for the Products upon acceptance of the Quotation, and the balance as a condition to Company shipping the Product. Company will submit timely invoices and, unless otherwise provided for in the Quotation, Buyer will pay such invoices in US Currency based on payment terms to be established by the Company in its Quotation. Any payments not paid when due shall accrue on such overdue amounts, from the time when such payment was originally due, on an annual rate at the prime commercial interest rate (as published by the Wall Street Journal) plus two percent (2%) from the date such amount was due. Failure to make a timely payment shall be an event of default. Company reserves all rights and remedies in the event of default.
8. Design & Installation. The selection of the quantity of Products, installation of the Products and any design, engineering or construction for the Project that will incorporate the Products are the responsibility of the Buyer and will be performed solely by or at the direction of the Buyer. Company’s sole responsibility to Buyer is to manufacture and deliver the Products and Company is not responsible for any loss, damages, costs, or expense resulting directly or indirectly from the installation or use of the Products.
9. Production. Buyer agrees that Company will not be obligated to begin manufacturing of any Product until final drawings are approved by Buyer and accepted by Company and prepayment of the deposit is paid by Buyer in accordance with these Terms and Conditions.
10. Inspection. The Buyer will promptly inspect Product (but such inspection shall be completed within five (5) days of date of delivery) and shall within 24 hours of inspection notify Company of the discovery and/or determination of any defective Product. Any Product confirmed to be defective, at Company’s option, will be replaced or credited in a commercially reasonable manner and time frame. As directed by Company, Buyer will either (i) ship the defective Product to a Company designated location at Company’s cost for such return freight charges, or (ii) destroy and dispose of the defective Product in accordance with Company’s directions and all applicable laws. Upon request by Company, Buyer will certify in a writing, executed by an officer of Buyer, the completion of such destruction and disposition.
11. Additional Costs in the Event of Project Delays. Should the Buyer not be able to accept shipment of the Company’s product as scheduled, due to Buyer’s project delays, Buyer is responsible for any costs or expenses incurred by the Company to store or maintain product.
12. Changes and Cancellation. In the event that prior to the final shipment of an order, Buyer may request to make changes to any order for Products. Company will promptly and reasonably consider such changes, provided all requests for any such changes shall (i) be in writing, (ii) where applicable, provide for equitable adjustments in the purchase price or fees and (iii) provide for reimbursement to Company for its costs to implement such changes and (iv) be subject to Company’s prior written approval, which shall not be unreasonably withheld. If Buyer cancels an accepted order at any time and Company has incurred any costs, the Buyer shall be invoiced and shall be liable to pay Company for all such costs (including for costs incurred in manufacturing of Products, logistical and transportation related costs and any other costs incurred directly attributable to the Quotation).
13. Indemnification. Except to the extent of any willful misconduct or gross negligent act by Company, the Buyer shall indemnify and hold Company harmless from any claim, proceeding, judgment or order (judicial or administrative), lien, security interest, liability, loss, damage, cost, expense (including reasonable attorneys’ fees), penalty or fine, or forfeiture or seizure (collectively, “Damages”) arising out of or relating to Buyer’s installation, use of, or failure to properly inspect the Products upon delivery.
14. Limitation of Liability. In no event will either party be liable to the other party or its affiliates (if any) for special, indirect, incidental, or consequential damages (including but not limited to lost production, lost profits, lost revenue, lost product, damage to goodwill, business interruptions or loss of business), whether based on the use or possession of the products. The liability of the Company to the Buyer will not exceed the purchase price for the Products.
15. Force Majeure. Company’s failure to perform its obligations hereunder shall be excused to the extent and for the period of time such nonperformance is caused by an event of force majeure, including but not limited to war, invasion, fire, explosion, flood, riot, strikes, acts of God, acts or threatened acts of terrorism, epidemic, pandemic, labor strike, transportation related issues, commercial embargoes, energy shortage, material supply chain interruption, acts of government, its agencies or instrumentalities, changes to applicable laws, or contingencies or causes beyond Company’s reasonable control.
16. Governing Law. This Agreement shall be construed and enforced according to the laws of the state of New York, excluding any conflicts law or choice of law principles. The Buyer agrees to the jurisdiction and venue of the federal or state courts of the State of New York and for any court actions permitted hereunder. In the event of any legal action related to these Terms and Conditions, including any arbitration pursuant to the Dispute Resolution set forth below, the prevailing party in such action shall be entitled to be reimbursed for its costs and fees (including reasonable attorneys’ fees) incurred in such action.
17. Warranty. Company warrants that it has good and marketable title to the Products purchased hereunder. EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESSED OR IMPLIED AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
18. Claims/Dispute Resolution. To the extent not resolved by the Parties after a meeting by senior management of each party, any dispute brought by either party shall be decided through arbitration in accordance with the Construction Industry Arbitration Rules of JAMS ADR. Such arbitration is mandatory and any reference to local courts in New York in these Terms and Conditions is limited to actions in aid of arbitration or preliminary injunctive relief.   The arbitration will be before a single arbitrator and the decision of the arbitrator shall be final and binding. Any arbitral award shall be specifically enforceable in any court of competent jurisdiction. All costs incurred by the prevailing party in dispute resolution will be reimbursed by the non-prevailing party. Any claim by Buyer against Company (including, without limitation, claims for shortages, defects, or damages) must be brought within one year of the date knew or should have known of such claim.
19. No Right to Set Off. Buyer waives any right it now has or later acquires to set off any amount due from Company or its affiliates against amounts owed by Buyer hereunder.
20. Notices. If either party is required or permitted to send the other party any notices, such notices shall be in writing and sent to the other party at the business address listed on the Quotation by (i) electronic mail or facsimile, (ii) registered or certified mail, postage prepaid, return receipt requested, or (iii) by private overnight delivery service. Notices shall be effective upon receipt.
21. Assignment. Buyer may not assign these Terms and Conditions and any Quotation without the prior written consent of the Company.
22. No Waiver. Any failure of either Party to enforce any of the provisions of these Terms and Conditions or to require compliance with any of its terms at any time during the term shall in no way affect its validity, or any part hereof, and shall not be deemed a waiver of the right of such Party thereafter to enforce any and each such provisions.