Terms and Conditions

GDR Global LLC and ROK-ON™ Building Systems (SELLER)

TERMS AND CONDITIONS

GENERAL. The Seller (“Seller”) and the Purchaser (Buyer”) named on the face hereof agree that the following terms and conditions apply to the materials, goods and/or products (the “Goods”) listed on the front of this agreement “Agreement”) or subsequently ordered pursuant to this Agreement by issuance of a purchase order from Buyer to Seller.
ACCEPTANCE/SOLE TERMS. This order is expressly conditioned upon Buyer’s acceptance to foregoing terms. Buyer is hereby put on notice that no terms additional to or deviating from the foregoing terms shall become part of the order, unless and until letter acceptance of such additional or deviating terms, signed by an office of Seller has been issued to Buyer. Buyer’s acceptance of any goods supplied by or on behalf of, Seller shall, without limitation constitute acceptance of Seller’s foregoing terms. If Buyer retains possession of the Goods for a period of ten (10) days or longer after the receipt of their shipment or makes use of the Goods at any time after their receipt, Buyer shall be deemed to have expressly assented to Seller’s foregoing terms without condition or qualification, and in so doing, Buyer shall have confirmed its express intention to waive any conditions or qualifications on Buyer’s acceptance of Seller’s offer.
PRICE. All prices are F.O.B. Seller’s plant unless otherwise specifically set forth in writing from the Seller. Prices stated are subject to change without notice in the event of (i) alterations in specifications, quantities, designs, or delivery schedules: (ii) increases in the cost of fuel, power, material supplied, or labor, and/or (iii) foreign or domestic legislation enacted by any level of government, including tax legislation which increases the cost of producing, warehousing or selling the Goods purchased hereunder. No discount will be allowed unless specifically set forth by the Seller. Buyer agrees to pay a delinquency charge of 1-1/2% per month or if such rate shall exceed the maximum rate allowed by applicable law, then a delinquency charge calculated at such maximum rate on the outstanding balance not paid when due, from the date such balances were due until payment with respect thereof is made in full. If, in Seller’s opinion, the financial condition of the Buyer at any time does not justify continuance of production or shipment on the terms of payment specified, the Seller may require full or partial payment in advance. Terms or payment are those appearing on the front side of the final quote or revision and duplicated on the invoice.
WARRANTY/REMEDY. ROK-ON™ standard warranty on the ROK-ON™ products is for a period of 20 years from the date of substantial completion, while warranty for coverings or coatings is to the confirmation of the suppliers of the coatings. ROK-ON™ allows for a maximum of 3 months from date material is delivered to the site for substantial completion, if not substantially complete within 6 months the warranty will begin 180 days after the 1st shipment of material was delivered and accepted on site. This warranty covers defects in materials and workmanship provided ROK-ON™ is notified of same within said 1 year period, but does not cover abuse, misuse, bad installations, poor storage conditions (uncontrolled environments), damage due to improper tool move in procedures or overloading of the panels, associated with work done in the field by any person or persons outside of ROK-ON™ unless duly authorized and instructed in writing by ROK-ON™. ROK-ON™ will at its option either repair or replace the defective material. ROK-ON™ will not be liable for consequential, incidental or indirect damages of any kind. This warranty is in lieu of all other warranties, express or implied, including but not limited to any warranties of merchantability or fitness for a particular purpose, which are expressly disclaimed. Furthermore, this warranty is null and void if ROK-ON™ is not paid or if any work is performed on the ROK-ON™ FRCC Boards and SIS Panels, which is not authorized in writing by ROK-ON™ or an authorized ROK-ON™ representative, partner or installer. THE FOREGOING WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE NOT EXPRESSLY HEREIN, ARE HEREBY EXCLUDED. NO AFFIRMATION OR SELLER, BY WORDS OR ACTION, OTHER THAN AS SET FORTH IN THIS WARRANT CLAUSE SHALL CONSTITUTE A WARRANTY. GOODS WHICH MAY BE SOLD BY SELLER BUT WHICH ARE NOT MANUFACTURED BY SELLER ARE NOT WARRANTED BY SELLER BUT ARE SOLD ONLY WITH THE WARRANTIES. IF ANY, OF THE MANUFACTURERS THEREOF. Seller’s warranty does not apply to any Goods which have been subjected to misuse, mishandling, misapplication, neglect, accident, improper installation or modification (including but not limited to use of unauthorized parts or attachments).
1. If any of the goods are found by Seller to be defective, such Goods will, at Seller’s option, be replaced or repaired at Seller’s cost or Seller will refund the purchase price or give Buyer a reasonable allowance thereof. The parties hereto expressly agree to Buyer’s sole and exclusive remedy against the Seller shall be for the repair or replacement of the defective Goods or the refund of the purchase price or allowances thereof. Buyer hereby agrees that this exclusive remedy shall not be deemed to have failed of its essential purpose so long as the Seller is willing and able to repair or replace defective Goods in the prescribed manner or refund the purchase price of give Buyer an allowance thereof.
2. Any warranty claim by Buyer with reference to the Goods sold hereunder shall be deemed waived by the Buyer unless submitted in writing to Seller with the earlier of (i) 30 days following the date Buyer discovered, or by reasonable inspection should have discovered, any claimed breach of the foregoing warranty, or (ii) 90 days following the date of shipment. Any cause of action for breach of the foregoing warranty shall be brought within one year from the date of alleged breach was discovered or should have been discovered, whichever occurs first.
3. Seller’s remedies relating hereto to shall be cumulative and in addition to any other remedies provided herein or by law or in equity.
LIMITATION OF LIABILITY. SELLER’S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR STRICT LIABILITY) FOR ITS GOODS SHALL BE LIMITED TO REPAIRING OR REPLACING (AT SELLER’S OPTION) GOODS FOUND BY SELLER TO BE NON-CONFORMING, OR AT SELLER’S OPTION, TO REFUNDING THE PURCHASE PRICE OF THE NON-CONFORMING GOODS. At Seller’s request, Buyer will send at, Buyer’s sole expense, any allegedly defective Goods to Seller’s plant if required.
DISCLAIMER OF CONSEQUENTIAL AND INCIDENTAL DAMAGES. IN NO EVENT SHOULD SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT INCLUDING WITHOUT LIMITATION BREACH OF ANY OBLIGATION IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH. THE REMEDY UNDER THE WARRANTY PROVISION IS LIMITED TO REPAIR OR REPLACEMENT. Consequential damages for purposes hereof shall include, without limitation, loss of use, income or profit or losses sustained as the result of injury (including death) to any person or loss of or damage to property (including without limitation, property handled or processed by the use of the goods). Buyer shall indemnity Seller against all liability, cost or expense which may be sustained by Seller on account of any such loss, damage or injury.
ACCEPTANCE OF GOODS, DELIVERY AND TRANSPORTATION. Upon buyer’s receipt of shipment, buyer shall immediately inspect the Goods in accordance with the Sellers receiving instructions (additional electronic PDF copies are available upon request prior to delivery). Unless Buyer provides Seller with written notice and photographs of any claim or shortages of or defects in the Goods within twenty-four (24) hours after receipt of shipment, such Goods shall be deemed finally inspected, checked and accepted by Buyer. In the absence of shipping and packing instructions, Seller shall use its own discretion in choice of carrier and method of packing. Seller shall not be responsible for insuring shipments unless specifically requested by Buyer and any insurance so requested shall be at Buyer’s expenses and valuation. Buyer is responsible for following Sellers receiving instructions and in order to file any claims, they’ll be required to submit the items identified in those instructions.
TITLE AND RISK OF LOSS. Title to any Goods sold and risk of loss of such Goods passes to Buyer upon delivery by Seller to carrier, and any claims for losses or damage shall be made by Buyer directly to carrier unless seller is handling the freight. But it is the buyer’s responsibility upon delivery to photograph the shipment prior to unloading any goods from the truck or container and then also providing any photo’s necessary showing the damaged items and or packaging that was caused by the shipment itself. If no photos showing this damage while in the container on the truck that delivered the goods are available the seller has no responsibility to damage claimed at a later time as it could have occurred at any time after the material was removed from the container to be stored until the time it goes into use or installation.
CREDIT TERMS. All orders and shipments shall at all times be subject to the approval of the Seller’s Credit Department. The Seller reserves the right to decline to make shipment whenever, for any reason, there is doubt as to Buyer’s financial responsibility or willingness to pay on time and Seller shall not in such event be liable for breach or nonperformance of this contract in whole or in part due to this.
PAYMENT TERMS. Unless otherwise approved by the Seller in advance, the following Standard Payment Terms applies to all Buyers:
1. For purchase orders placed by the Buyer the payment terms are:
  1. 25% down upon receipt of a purchase order, due and payable upon receipt of invoice.
  2. Upon shipment, Seller invoices will reflect a 25% credit on the total invoice (plus any preapproved discounts). Terms on these invoices are NET 30 DAYS.
  3. Pre-payment may be required before shipping if the Buyer does not have credit approved by the Seller, or the Buyer is not in good credit standing.
2. Invoice payment is DUE without exception on the due date, as we do access interest charges calculated at 0.05% per day beginning the 5th business day after Invoice due date compounded daily on unpaid balances, not to exceed 1.5% per month according to Texas State Law. This is not negotiable and if an order is placed with us for any materials or products these payment terms are understood to be in effect regardless of any other terms associated with the buyers PO as ROK-ON™ Terms prevail for material purchases unless specifically agreed to in writing and approved separately by both parties, no exception.
SECURITY INTEREST. To secure prompt payment of the purchase price for the goods identified on the face hereof this invoice or the quotation provided. Buyer hereby grants to Seller a purchase money security interest in the goods purchased from Seller and all proceeds thereof (the “Collateral”). Buyer agrees to execute and deliver to Seller UCC financing statements, together with any and all other documents, and shall take such other action, as may be required to perfect Seller’s security interest in the Collateral.
COSTS OF COLLECTION. If, at any time or times, Seller incurs collection costs, legal expenses or other costs of expenses in connection with: (i) any litigation, contest, suit, dispute, proceeding or action in any way relating to the Collateral: (ii) any attempt by Seller to enforce any rights of Seller against Buyer or any other person which may be obligated to seller hereunder, or (iii) any attempt to inspect, verify, protect, preserve, restore, collect, sell, liquidate or dispose of the Collateral; then, in any such event, the expenses and costs (including attorney’s fees) relating to any of the foregoing events or actions shall be payable by Buyer on demand to Seller and shall be considered additional obligations hereunder secured by the Collateral. Seller reserves the right to revoke any credit extended to Buyer at any time, because of Buyer’s failure to pay for any goods when due or for any reason deemed good and sufficient by Seller.
TAXES. Any sales, use or similar taxes, export charges, fees or other levies, taxes or surcharges now or hereafter imposed in connection with the production, sale, delivery, use or proceeds of the goods herein specified (except for taxes on seller’s net income) shall be payable by Buyer, and if such taxes or fees are paid or are required to be paid by Seller, the amount thereof shall be added to and become part of the price payable by Buyer hereunder, unless Buyer provides Seller with a valid tax exemption certificate. Seller will not collect sales tax associated with the material ordered or purchased at anytime if this material is being purchased for resale by Buyer to a customer of the Buyer. In these cases, Seller is a wholesaler and Buyer would be responsible for collecting any sales and use taxes require as a result of their sale to their buyer.
PACKAGING. Prices stated are based on Seller’s standard packaging. Seller reserves the right of packaging the Goods in pallets, bulk or individual cartons. Packaging will be standard commercial package and acceptable to commercial carrier. Special customer packaging will be furnished only when specified and so stated herein, and the cost thereof shall be borne by Buyer.
DELAYS. Unless expressly specified to the contrary, Goods in stock will be shipped immediately, and Goods not in stock will be shipped as soon as possible or based on the proposed lead times stated in the quotation. However, all shipping dates are approximate, and are based upon current availability of materials, present production schedules, and prompt receipt of all necessary information. Seller will not be liable for any damage, loss, fault, or expenses arising out of delays in shipment or other nonperformance of this Agreement caused by or imposed by: (a) strikes, fires, disasters, riots, acts of God, (b) acts of Buyer, (c) shortages of labor, fuel, power, materials, supplies, transportation, or manufacturing facilities, (d) governmental action, (e) subcontractor or supplier delay including, but not limited to failure by subcontractor or supplier to make timely delivery, or (f) any other cause of condition beyond Seller’s reasonable control. In the event of any such delay or nonperformance, Seller may, at its option, and without liability, cancel all or any portion of this Agreement and/or extend any date upon which any performance hereunder is due.
TERMINATION, CANCELLATION AND CHANGES. Orders cannot be terminated, cancelled or modified, or shipment deferred after acceptance of Buyer’s order by Seller, except with Seller’s written consent and subject to reasonable charges for expenses incurred and work executed by Seller or its suppliers. Purchase shall be obligated to accept any portion of the goods shipped or delivered by Seller pending Seller’s written approval of cancellation. Orders for custom made material may not be cancelled after Seller has been in production unless Seller agrees in writing.
RETURNED PRODUCTS. Delivered Goods returned to Seller require prior written approval from seller before such goods will be accepted. Handling, inspection, restocking and invoicing charges will be accessed, if applicable, plus any outgoing packing and freight expenditures paid by Seller. All returns allowed must be shipped to Seller prepaid and must be in excellent resale condition unless agreed to differently buy Seller. Goods processed to Purchaser’s specifications are not returnable.
NO WAIVER. Forbearance or failure of Seller to enforce any of the terms and conditions stated herein, or to exercise any right accruing from default of Buyer, shall not affect or impair Seller’s rights arising from such defaults; nor shall forbearance or failure be deemed a waiver of Seller’s rights in case of any subsequent default of Buyer.
SEVERABILITY. If any provision of this Agreement is unenforceable or invalid, this Agreement shall be interpreted and enforced to the greatest extent possible as if the unenforceable provision or portion had never been a part hereof.
ASSIGNMENT. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of buyer and Seller provided, however, that buyer may not assign or transfer this contract, in whole or in part, except upon the prior written consent of Seller.
GOVERNING LAW. This Agreement shall be construed in accordance with and governed by the laws of the State of Texas without regard to its conflict of law provisions. All actions or proceedings arising directly or indirectly here from shall be litigated only in the courts of the State of Texas or United States federal courts located therein and the parties hereby consent to the jurisdiction and venue of such courts.
ALTERNATIVE DISPUTE RESOLUTION
1. Any dispute or claim arising from or relating to this Agreement or performance under it shall be resolved amicably through discussions between Buyer and Seller attempting in good faith to negotiate a resolution thereof; provided, however, that either buyer or Seller may seek injunctive relief from a court of proper jurisdiction where appropriate, in order to maintain the status quo while this procedure is being followed. If the parties fail to resolve any dispute arising under this Agreement, either party may seek arbitration as follows: (a) By written notice to the other party, submitting the dispute to binding arbitration, in accordance with the then-current Expedited Commercial Arbitration Rules under the American Arbitration Association (“AAA”), each party to bear equally the costs of the arbitration provided, however, that the other party may agree or refuse to participate in such arbitration. (b) If the parties are not successful in resolving the dispute through self-help or one of the parties refuses to participate in arbitration, the dispute shall be resolved by litigation.
2. Any claim submitted to arbitration must be governed by the Expedited Commercial Rules of the AAA: except that (i) Provision 20 must govern applicable law and construction, (ii) the locale of any arbitration will be in Dallas Texas or agreed to by the parties in writing, (iii) the arbitration panel will consist of a single arbitrator, selected pursuant to the rules of the AAA, (iv) the language of the arbitration must be in English, (v) any arbitration award must state the arbitrator’s material findings of fact and conclusions of law, (vi), a party may seek preliminary injunctive or other equitable relief from any court of competent jurisdiction to preserve the status quo pending establishment of an arbitration panel, (vii) a prevailing party in litigation to require arbitration or to obtain preliminary relief pending establishment of an arbitration panel, in arbitration, or in litigation to confirm or enforce an arbitration award will be entitled to recover is reasonable attorney’s fees and costs. Any suite to require arbitration under this agreement, or to enforce judgment upon an arbitration award, may be brought in the state and federal courts of the State of Nevada.
ENTIRE CONTRACT. Upon Seller’s acceptance of buyer’s order, the terms and provision set forth herein shall constitute the entire agreement between Buyer and Seller and no statement, correspondence, sample or other terms shall modify of effect terms hereof. And the terms of payment in item 10 above govern over any other payment terms unless specifically agreed to in writing and approved separately by both parties.