Holcim US Cement Sales Terms

  1. ACCEPTANCE. These Terms and Conditions of Sale (“Terms”) and the written quotation issued by Seller to Buyer (“Written Quotation”) (the Terms and the Written Quotation are collectively the “Sales Agreement”) govern all sales of products, materials, and services (collectively the “Products”) between the legal entity set out in the Written Quotation as the seller (“Seller”) and the buyer set out in the Written Quotation (“Buyer”) with respect to the sale and supply of the Product set out in the Sales Agreement, regardless of whether Buyer purchases the Products through the medium of verbal orders, written purchase orders or electronic orders (collectively, “Purchase Orders”). Seller’s acceptance of any order is subject to Buyer’s assent to these Terms. Buyer’s assent to these Terms shall be presumed from Buyer’s receipt of Seller’s Terms or Buyer’s acceptance of all or any part of the Products ordered; no addition or modification of these Terms shall be binding upon Seller unless agreed to by Seller in writing. Buyer acknowledges and agrees that, by signing this Sales Agreement or by ordering and/or receiving any Product from Seller, this Sales Agreement shall become a binding contract between Buyer and Seller on the terms and conditions set out in this Sales Agreement All other terms, conditions, representations, warranties and/or any other terms contained in the documents of Buyer, including but not limited to, terms and conditions, forms and/or Purchase Orders of Buyer are excluded in their entirety and expressly rejected by Seller unless, prior to the earlier of (i) Buyer first ordering any Product pursuant to the Written Quotation, or (ii) Buyer receiving or taking possession of any Product pursuant to the Written Quotation, Seller has both received in writing and expressly accepted in writing the terms of Buyer’s Purchase Order. If a Purchase Order or other correspondence or documentation contains terms or conditions contrary to the terms and conditions contained herein, Seller’s acceptance of any order shall not (i) be construed as assent to such contrary or additional terms and conditions or (ii) constitute a waiver by Seller of any of the terms and conditions contained in these Terms. Seller reserves the right to reject any Purchase Order submitted by Buyer.
  2. SHIPMENTS; TITLE: RISK OF LOSS. Buyer may direct Product to be delivered to Buyer at either Seller’s facility or Buyer’s facility. If Product is delivered to Buyer at Seller’s facility, (i) prices are F.O.B. Seller’s facility, (ii) title and risk of loss pass to Buyer upon delivery to Buyer or its carrier at Seller’s facility and (iii) Buyer must make claims for shipping loss or damage directly to the carrier. If Product is delivered to Buyer at Buyer’s facility, (i) prices are F.O.B. Buyer’s facility, (ii) title and risk of loss pass to Buyer upon delivery to Buyer’s facility, (iii) shipments will be made from points, over routes and by carriers selected by Seller, (iv) Seller’s shipping dates are estimates and dates of delivery are not guaranteed, (v) Buyer shall bear destination demurrage and detention charges, and (vi) rail and truck shipments are subject to rates, rules and regulations in carriers’ tariffs applicable on date of shipment. Carrier’s or Seller’s truck scale weights and/or carrier’s stenciled tare weights will be used and shall be conclusive. Any of Holcim (US) Inc. (“HUS”) or another affiliate of HUS may supply Products sold hereunder. HUS, via its Shared Service Center, is the collection agent of each of the supplying entities pursuant to service agreements with them.
  3. TERMS OF PAYMENT. Upon approval of Buyer’s credit, all invoices will be due at the gross amount and payable not later than the last day of the month following shipment. Each shipment shall be considered a separate and independent transaction and payment therefor shall be made accordingly. All invoices are payable at the address shown on the invoice. A prompt payment discount in the amount stated on the invoice (if any) will be allowed on payments received by the 10th of the month for shipments made during the previous month, provided no past due balances are outstanding at such time. Invoices not paid in full by the last day of the month following the month of shipment shall be considered past-due and shall bear interest at the rate of 1½% per month or the maximum rate permitted by applicable law, if lower, thereafter until paid. In addition to the interest, upon Buyer’s breach or default, Seller shall be entitled to all rights under the Uniform Commercial Code (“UCC”) and all rights at law and in equity; Buyer agrees to reimburse Seller for all collection costs, court costs, attorneys’ fees and expenses, and other charges incurred by Seller. If at any time financial responsibility of the Buyer becomes impaired or unsatisfactory to Seller, Seller may require payment or satisfactory security or guaranty in advance of shipment. If Buyer fails to deliver such security or guaranty, to make a payment when due, or to comply with any other term of sale, Seller reserves the right to cancel all unfilled orders without notice.
  4. SECURITY INTEREST. Seller shall have the right to retain a security interest in the Products sold or shipped and to require Buyer to execute a security agreement and authorize filing of financing statements under the applicable provisions of the UCC. Buyer hereby grants such security interest to Seller and authorizes such filing.
  5. LIMITED WARRANTY. The Product has been manufactured to conform to applicable specifications of the American Society for Testing and Materials (“ASTM”) or the American Petroleum Institute (“API”) as may be set forth on the bill of lading or invoice for such Product, or such other specifications as may be identified by Seller for non-ASTM or non-API Product. Seller, having no control over the use of the Product, does not guarantee finished work, nor shall Seller be responsible for the condition of the Product after delivery to Buyer. Charges incident to inspection or testing made by or on behalf of Buyer to determine compliance with applicable specifications shall be paid for by Buyer. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, SELLER SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY, INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY OTHER MATTER; ALL OF SUCH WARRANTIES ARE EXCLUDED. THE WARRANTY PROVIDED HEREIN N THE EXCLUSIVE WARRANTY PROVIDED BY SELLER.
  6. LIMITATION OF LIABILITY AND REMEDIES. SELLER’S TOTAL LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE PURCHASE PRICE OF PRODUCTS SOLD UNDER THIS AGREEMENT OR CORRESPONDING PURCHASE ORDER GIVING RISE TO THE CLAIM. THE SOLE AND EXCLUSIVE REMEDY OF BUYER OR ANY OTHER PARTY AGAINST SELLER FOR ALL CLAIMS OF ANY KIND, WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, FOR ANY LOSS OR DAMAGES ARISING OUT OF, CONNECTED WITH OR RESULTING FROM, THE SALE OR FAILURE TO SELL, SHALL BE REPLACEMENT OF SUCH PRODUCT SOLD HEREUNDER, F.O.B. SELLER’S PLANT OR TERMINAL OR UTILITY OR, AT SELLER’S OPTION, REFUND OF THE PURCHASE PRICE PAID FOR THE PRODUCT. NO OTHER REMEDY SHALL BE AVAILABLE TO BUYER INCLUDING, BUT NOT LIMITED TO INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, PUNITIVE DAMAGES, INJURY TO PERSONS OR PROPERTY OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL LOSS, REGARDLESS OF WHETHER THOSE DAMAGES WERE FORESEEABLE AND EVEN IF SELLER IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER AND SELLER AGREE THAT THE EXCLUSIVE REMEDY SET FORTH HEREIN DOES NOT CAUSE THE SALES AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. AS PART OF THE CONSIDERATION FOR THE PRODUCT, BUYER AGREES NOT TO SUE SELLER IN RESPECT OF THESE TERMS OR ANY QUOTATION RELATED TO THE PRODUCTS DESCRIBED HEREIN OR THEREIN (UNLESS SELLER HAS BREACHED ONE OF THE DUTIES EXPRESSLY CREATED HEREUNDER), AND BUYER FURTHER AGREES TO INDEMNIFY SELLER AND ITS EMPLOYEES, OFFICERS, DIRECTORS, AND AGENTS FROM ANY AND ALL CLAIMS, COSTS, FEES AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, THAT MAY BE INCURRED OR SPENT INCIDENT TO ANY SUCH CLAIM BY ANY PARTY (UNLESS SELLER HAS BREACHED ONE OF THE DUTIES EXPRESSLY CREATED HEREUNDER, AND THEN LIMITED ONLY TO THAT CLAIM ALONE).
  7. TECHNICAL INFORMATION; HAZARDS AND PRECAUTIONARY PROCEDURES; INDEMNITY. Any technical information or assistance Seller or its affiliates provide is given and accepted at Buyer’s risk and is not a warranty or a specification. A material Safety Data Sheet (“SDS”) with complete safety information is available from Seller. Buyer agrees that it will familiarize itself with all hazards and precautionary procedures with respect to the handling, transportation or use of the Product and will manage the Product accordingly. Buyer agrees to provide or make available such SDS to all persons who may purchase, use or come into contact with the Product including its employees and customers. Buyer agrees to indemnify Seller and its employees, officers, directors, and agents for any claims made against Seller or its affiliates, and for associated damages and expenses (including reasonable attorneys’ fees and expenses), due, in whole or in part, to Buyer’s failure to familiarize itself with such hazards and precautionary procedures, to manage accordingly or to provide such information as set forth above or required by law.
  8. DUTIES AND TAXES. All duties and taxes of any governmental authority payable in respect to the purchase and sale of goods and/or the delivery of the goods to the point of delivery are for the account of Buyer, except as otherwise set out herein.
  9. FORCE MAJEURE AND ALLOCATION. Seller shall not be liable for any expense, loss or damage due to its failure to perform or its delay in manufacturing, shipping or delivering Products caused by (i) acts of God; acts of war; acts of public enemy; data breaches; epidemics/pandemics; fire; unusually severe weather conditions, earthquakes, or floods; labor shortages, disputes, strikes or lockouts; breakdowns or accidents; plant shutdowns; inability to secure rail cars, trucks or barges or other delays in transportation; inability to procure supplies or other materials; or delays of a subcontractor of Seller if such delay arises out of causes beyond the reasonable control of both Seller and the subcontractor; government actions, regulations, orders or rulings; acts or omissions of Buyer; or any other events or other conditions beyond Seller’s control, whether similar or dissimilar to the foregoing acts or occurrences. During times of shortage, Seller shall have the right to allocate among its customers in accordance with Section 2-615 of the UCC.
  10. NOTICES. No notice or other communication under the Sales Agreement is sufficient to affect any rights, remedies or obligations of either party unless the notice or communication is in writing and (as elected by the party giving the notice) is: (i) personally delivered, (ii) transmitted by facsimile (with a receipt acknowledgment), (iii) transmitted by electronic computer mail, (iv) transmitted by a recognized courier service, or (v) mailed (air mail if international) in registered or certified form, to the party to which notice or communication is being given at its respective address designated on the face of the Written Quotation or as otherwise designated in writing. Notices or communications shall be deemed to have been duly given (i) on the date of receipt if delivered personally, (ii) on the date of transmission if delivered by facsimile, (iii) on the date of transmission if transmitted by electronic computer mail, (iv) one day after pickup by courier if delivered by courier or (v) five days after mailing if delivered by the postal service. Either party may change its Notice address by providing written notice to the other party. NOTICES RELATED TO DEBT DISPUTE: Notwithstanding the foregoing, Buyer shall submit notices regarding a dispute involving payment and/or debt, to the following address: Holcim Treasury Department - DISPUTES, 6211 Ann Arbor Road, Dundee, MI 48131 ATTN: Gina Santacroce. DEBT AND/OR PAYMENT NOTICES SENT TO AN ADDRESS AND RECIPIENT OTHER THAN THE DESIGNATED DEBT DISPUTE OFFICE ARE NULL AND VOID.
  11. GOVERNING LAW. The validity, construction and performance of the Sales Agreement is governed by, and must be construed in accordance with, the law of the state where work is performed or Product is shipped (the “Governing State”), without regard to such state’s conflicts of law provisions. NOTE: For work performed in or Product shipped to New York, any disputes relating to payments and/or debts will be governed by the laws of the state of Illinois, without regard to its conflicts of law provisions.
  12. JURISDICTION AND VENUE. Buyer irrevocably submits and agrees to the jurisdiction of the state and federal courts of the Governing State. Any action, suit or proceeding related to, or in connection with, the Sales Agreement and, to the extent permitted by applicable law, Buyer waives and agrees not to assert as a defense in any such action, suit or proceeding any claim (i) that Buyer is not personally subject to the jurisdiction of the state and federal courts in the Governing State; (ii) that the venue of the action, suit or proceeding is improper; (iii) that the action, suit or proceeding is brought in an inconvenient forum; or (iv) that the subject matter of the Sales Agreement may not be enforced in or by the state or federal courts of the Governing State. Without prejudice to any other mode of service, Buyer consents to service of process relating to any such proceedings by personal or prepaid mailing (air mail if international) in registered or certified form a copy of the process to the Buyer at the address set forth in Section 10.
  13. WAIVER. The waiver by Seller of any breach by Buyer of any provision of the Sales Agreement may not be construed to be either a waiver of the provision itself as to subsequent application or any other provision of the Sales Agreement. The failure of a party to enforce any of the provisions of the Sales Agreement or any Purchase Order wi ll not waive such provisions, nor will any such failure prejudice or affect the other party’s right to enforce that provision in the future.
  14. SEVERABILITY. If any provision of the Sales Agreement is held by a court of competent jurisdiction to be unenforceable, invalid, or contrary to law or public policy, the remaining provisions of the Sales Agreement will not be affected, and shall remain in full force and effect.
  15. TERMINATION. Seller may terminate the Sales Agreement under the following conditions, and in the manner specified: (i) immediately upon written notice of termination to Buyer if Buyer materially breaches or is in default of any obligation hereunder, and the breach or default is incapable of cure, or if it is capable of cure, has not been cured within ten (10) days after receipt of written notice from the injured party; (ii) immediately upon written notice to Buyer if Buyer has filed for dissolution, bankruptcy, insolvency, receivership or for some similar method of protection against creditors; or (iii) immediately upon Buyer’s failure to pay Seller’s invoices in accordance with the payment terms stated above or as otherwise agreed in writing by authorized representatives of both parties. If the Sales Agreement is terminated by Seller because of Buyer’s default or breach, Seller may (in addition to any other rights or remedies provided herein or at law or in equity) by written notice to Buyer, terminate its obligations, or any part thereof, without any liability to Seller. Seller is entitled to reasonable reimbursement from Buyer for any labor, material or other expenses incurred in connection with the Sales Agreement, plus a reasonable amount for overhead.
  16. CONFIDENTIALITY. To the extent Buyer receives or is exposed to Seller’s confidential or proprietary information, including but not limited to designs, specifications, design mixes, instructions, trade secrets, data or know-how pertaining to the Products covered under the Purchase Order (collectively “Confidential Information”), Buyer shall maintain the Confidential Information of Seller and will use such information only for the purposes of the Purchase Order. Buyer shall not divulge, disclose or in any way distribute or make use of Confidential Information, and shall not manufacture, repair (or enable a third party to manufacture or repair), alter, modify, decompile, disassemble, reverse engineer, translate or create derivative works of Seller’s Products.
  17. SUCCESSORS AND ASSIGNS. The Sales Agreement binds and inures to the benefit of Buyer and Seller and their respective successors and permitted assigns. Buyer may not assign any interest in, nor delegate any obligation under the Sales Agreement, without Seller’s prior written consent. Any assignment in violation of this clause shall be null and void.
  18. ENTIRE AGREEMENT. The Sales Agreement comprises the complete and final agreement between Seller and Buyer and supersedes all prior negotiations, proposals, correspondence, communications, discussions, representations, commitments, understandings or agreements between Seller and Buyer, either written or oral, on its subject. No other agreement, quotation or acknowledgment in any way purporting to modify any of the terms of the Sales Agreement is binding upon Seller unless made in writing and signed by Seller’s authorized agent. The Sales Agreement may not be altered or modified except by written agreement of Seller and Buyer. Any other representations or statements (whether oral or written) made by any person, including employees or other agents of Seller, that are inconsistent with the Sales Agreement must be disregarded by Buyer, do not constitute warranties and are not binding upon Seller. If any model or sample was shown to Buyer, such model or sample was used merely to illustrate the general type and quality of goods and not to represent that the Products would necessarily conform to the model or sample.
  19. CONSTRUCTION. The headings of the Sections in these Terms are provided for convenience only and may not be considered in the interpretation of the Sales Agreement. The parties agree that the provisions of the Sales Agreement may not be construed in favor of or against either party by reason of the extent to which a party or its professional advisors participated in the preparation of the Sales Agreement.
  20. SURVIVAL. The terms of the Sales Agreement that by their nature are reasonably intended by the parties to survive the Sales Agreement’s expiration or earlier termination, including, but not limited to, Sections 4, 5, 6, 7, 8, 11,12, 16 and this section 20 shall survive the expiration or termination of the Sales Agreement.

Holcim US ACM Sales Terms

  1. ACCEPTANCE. These Terms and Conditions of Sale (“Terms”) and the written quotation issued by Seller to Buyer (“Written Quotation”) (the Terms and the Written Quotation are collectively the “Sales Agreement”) govern all sales of products, materials, and services (collectively the “Products”) between the legal entity set out in the Written Quotation as the seller (“Seller”) and the buyer set out in the Written Quotation (“Buyer”) with respect to the sale and supply of the Product set out in the Sales Agreement, regardless of whether Buyer purchases the Products through the medium of verbal orders, written purchase orders or electronic orders (collectively, “Purchase Orders”). Seller’s acceptance of any order is subject to Buyer’s assent to these Terms. Buyer’s assent to these Terms shall be presumed from Buyer’s receipt of Seller’s Terms or Buyer’s acceptance of all or any part of the Products ordered; no addition or modification of these Terms shall be binding upon Seller unless agreed to by Seller in writing. Buyer acknowledges and agrees that, by signing this Sales Agreement or by ordering and/or receiving any Product from Seller, this Sales Agreement shall become a binding contract between Buyer and Seller on the terms and conditions set out in this Sales Agreement All other terms, conditions, representations, warranties and/or any other terms contained in the documents of Buyer, including but not limited to, terms and conditions, forms and/or Purchase Orders of Buyer are excluded in their entirety and expressly rejected by Seller unless, prior to the earlier of: (i) Buyer first ordering any Product pursuant to the Written Quotation; or (ii) Buyer receiving or taking possession of any Product pursuant to the Written Quotation, Seller has both received in writing and expressly accepted in writing the terms of Buyer’s Purchase Order. If a Purchase Order or other correspondence or documentation contains terms or conditions contrary to the terms and conditions contained herein, Seller’s acceptance of any order shall not: (i) be construed as assent to such contrary or additional terms and conditions; or (ii) constitute a waiver by Seller of any of the terms and conditions contained in these Terms. Seller reserves the right to reject any Purchase Order submitted by Buyer.
  2. PRICE. The price of the Products, as set forth in the Purchase Order, does not include sales, use, excise or any other taxes or assessments levied by any federal, state, municipal or other governmental authority now in force or expected in the future, unless Seller expressly agrees otherwise. In case of dispute between verbal or faxed quotations and a written quotation provided by Seller to Buyer (a “Written Quotation”), the Written Quotation shall be the controlling document. If during the performance of this Sales Agreement, the price of materials or costs of labor increase, the price of Products under this Sales Agreement shall be equitably adjusted by an amount reasonably necessary to cover any such price increases. Such price increases shall be documented through quotes, invoices, or receipts. Prices shown on any published price list, or prior to Seller’s acceptance of Purchase Orders are subject to change without notice.
  3. PAYMENT. Payments must be made to Seller in U.S. dollars within thirty (30) days of Buyer’s receipt of the Products or invoice, whichever is sooner. Payments not received when due will bear interest at the lower of 18% per annum or the maximum rate allowed by applicable law. Seller reserves the right to limit or cancel the credit of Buyer, and Seller may require or demand payment or adequate assurances of performance from Buyer prior to taking any preparatory steps for performing the Sales Agreement or beginning the manufacture of the Products. If Buyer is delinquent in any payment to Seller, then until all delinquent amounts and late interest, if any, are paid Seller may, at its discretion: (i) be relieved of its obligations with respect to guarantees, including, without limitation, delivery lead times; (ii) refuse to process any credit to which Buyer may otherwise have been entitled; (iii) set off any credit or sum owed by Seller to Buyer against any undisputed amount owed by Buyer to Seller; (iv) withhold future shipments to Buyer; (v) declare Buyer’s performance in breach and/or terminate any Purchase Order; (vi) repossess Products for which payment has not been made; (vi) deliver future shipments on a cash-with-Purchase Order or cash-in-advance basis; (viii) charge storage or inventory carrying fees on Products; (ix) recover all costs of collection including, without limitation, reasonable attorneys’ fees; or (x) exercise any of the above rights and remedies as may be permitted by applicable law. Notwithstanding the foregoing payment terms, in the event of a conflict or discrepancy between the payment terms set forth on the face of a Written Quotation and the terms set forth herein, the payment terms included on such Written Quotation shall control and govern.
  4. SPECIFICATIONS. Seller shall manufacture the Products in substantial conformity with the drawings, data, instructions, samples and specifications, if any, that are provided by Buyer in a timely fashion and reflected by Seller in a Written Quotation. All product and product-related specifications are subject to applicable freight classification, Seller’s customary manufacturing processes and industry courses of dealing and usages of trade.
  5. SHIPMENT. Unless otherwise specified by Seller, all prices are FOB Seller’s manufacturing facility. Buyer must pay all transportation costs of the Products. Seller may make partial shipments at Seller’s sole discretion. Seller must endeavor to meet the shipping date specified by Buyer. In no event will Seller be liable for any loss or damage (including any loss of use or loss of profits) incurred by the Buyer if Seller is unable to deliver on a particular date, and Buyer shall have no claim for damages resulting therefrom. Seller reserves the right to impose additional charges for any special routing, packing, labeling, handling or insurance requested by Buyer.
  6. TITLE AND RISK OF LOSS. Title to the Products passes to Buyer when Seller has received full and indefeasible payment for such Products. Seller is not responsible for damage or loss in transit. All risk of loss to the Products passes to Buyer as the Products are loaded onto the carrier. Buyer must obtain adequate insurance to cover the Products from the time risk of loss has passed from Seller.
  7. LIMITED WARRANTY. Seller warrants that the Products will meet the specifications. THE FOREGOING NOTWITHSTANDING, SELLER IS NOT LIABLE FOR NORMAL MANUFACTURING DEFECTS OR FOR CUSTOMARY VARIATIONS FROM QUANTITIES OR SPECIFICATIONS. UNLESS EXPRESSLY STATED IN THE SALES AGREEMENT, SELLER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND (WHETHER ARISING BY IMPLICATION OR BY OPERATION OF LAW) WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY OTHER MATTER. THE WARRANTY PROVIDED HEREIN IS THE EXCLUSIVE WARRANTY PROVIDED BY SELLER. THIS SECTION SURVIVES THE TERMINATION OR CANCELLATION OF THE SALES AGREEMENT.
  8. CONDITIONS OF APPLICABILITY OR WARRANTY. Seller’s warranty of any Product is of no effect if: (i) the Product is not stored or handled appropriately; (ii) the defect of the Product resulted from damages occurring after delivery of the Product; (iii) the defect of the Product has not been reported to Seller within thirty (30) days after delivery; (iv) the defect should have been discovered by Buyer in Buyer’s inspectionand it is not reported to Seller within ten (10) days after the Product’s arrival at the destination; (v) the Product is subjected to abuse, misuse or neglect; (vi) the Product has been damaged by or subjected to environmental conditions, overload conditions or any other condition for which the Product was not designed; (vii) the Product has been repaired or altered by a third party other than Seller or Seller’s authorized representative; or (viii) the defect is caused in whole or in part by the application of corrosive or other materials that may impact the integrity of the Product. No agreement extending, expanding or supplementing this warranty will be binding on Seller unless in writing and signed by an authorized representative of Seller.
  9. DEFECTIVE PRODUCTS. If a Product does not conform to the limited warranty in Section 7 and the warranty is not excluded by Section 8, then Buyer must promptly notify Seller. Upon receipt of a claims report, Seller must either ask Buyer for a sample of the defective Product or schedule an inspection of the defective Product. If Seller determines that the Product does not comply with the warranty provided in Section 7, then Seller must repair or replace the defective Product at no cost to Buyer. Except as provided in this Section 9, SUCH REPAIR OR REPLACEMENT IS THE ONLY REMEDY OF BUYER FOR ANY BREACH OF THE LIMITED WARRANTY PROVIDED BY SELLER IN SECTION 7.
  10. RETURNS. No Products may be returned to Seller without providing prompt written notice of that intent and obtaining Seller’s prior written consent. Returned Products must be securely packed by Buyer to reach Seller without damage. Buyer is responsible for the costs of returning the Products without being damaged.
  11. LIMITATION OF LIABILITY AND REMEDIES. IN NO EVENT IS SELLER RESPONSIBLE TO BUYER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ALL DIRECT AND INDIRECT LOSS OF PROFITS, LOSS OF REVENUE OR LOSS OF USE, REGARDLESS OF WHETHER THOSE DAMAGES WERE FORESEEABLE AND EVEN IF SELLER IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER’S TOTAL LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS SALES AGREEMENT SHALL BE LIMITED TO THE PURCHASE PRICE OF PRODUCTS SOLD UNDER THIS SALES AGREEMENT OR CORRESPONDING PURCHASE ORDER GIVING RISE TO THE CLAIM. THE SOLE AND EXCLUSIVE REMEDY OF BUYER OR ANY OTHER PARTY AGAINST SELLER FOR ALL CLAIMS OF ANY KIND, WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, FOR ANY LOSS OR DAMAGES ARISING OUT OF, CONNECTED WITH OR RESULTING FROM, THE SALE OR FAILURE TO SELL, SHALL BE REPLACEMENT OF SUCH PRODUCT SOLD HEREUNDER, OR, AT SELLER’S OPTION, REFUND OF THE PURCHASE PRICE PAID FOR THE PRODUCT. NO OTHER REMEDY SHALL BE AVAILABLE TO BUYER. BUYER AND SELLER AGREE THAT THE EXCLUSIVE REMEDY SET FORTH HEREIN DOES NOT CAUSE THE SALES AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. Except as expressly set forth herein, nothing herein or in any quotation shall: (i) create any right, cause of action or claim of, for, or on behalf of the Buyer, its, heirs, successors, or assigns, or any third party under any theory, whether in contract, tort, negligence, strict liability or otherwise, other than the rights expressly set forth and created herein; (ii) create, modify or extend any express or implied warranties, or any limitations of those warranties; (iii) give the Buyer any rights to claim any direct or indirect damages of any nature, including but not limited to any incidental or consequential damages that may arise out of the use of any of the Product described herein or in such quotation or any parts thereof, or any Product replacement provided by Seller. As part of the consideration for the Product, Buyer agrees not to sue Seller in respect of these Terms or any quotation related to the Products described herein or therein (unless Seller has breached one of the duties expressly created hereunder), and Buyer further agrees to indemnify Seller from any and all claims, costs, fees and expenses, including reasonable attorneys’ fees, that may be incurred or spent incident to any such claim by any party (unless Seller has breached one of the duties expressly created hereunder, and then limited only to that claim alone).
  12. ENVIRONMENTAL FEE & FUEL SURCHARGE. Seller is committed to help ensure a clean and safe environment for our employees, our customers, and our communities. Seller also is committed to controlling and covering its costs so we can continue to provide the best overall value across all product lines. Environmentally-related costs and fuel-related costs are something Seller cannot fully control. Seller’s environmental fee and fuel surcharge are meant to help us cover these costs and to help us achieve an acceptable operating margin. The environmental fee and fuel surcharge are separate line items on customer invoices. Seller’s environmental fee helps to cover our costs and expenses to operate, on a company-wide basis, in a safe and environmentally responsible manner. The amount or percentage of the environmental component is not specifically tied to the direct or indirect costs to service Buyer’s account, but instead to the Seller’s overall costs and operating margin goals. Similarly, Seller’s fuel surcharge is a charge to cover the Seller’s overall costs associated with the delivery of products, including but not limited to the cost of fuel, and the incremental costs for unexpected mileage, wait times, and traffic patterns, and to help meet margin goals.
    NOT A GOVERNMENTAL TAX; FUTURE CHANGES. Seller’s environmental fee and fuel surcharge are not taxes, surcharges, or fees imposed by or remitted to any governmental or regulatory agency; they are Seller’s charges. The environmental fee and fuel surcharge may be changed at the discretion of Seller. To the extent required by Buyer’s applicable customer service terms, the assessment of the environmental fee and fuel surcharge or any change to such charge is effective upon Buyer’s acceptance of rebate payments from Seller or Buyer’s payment of any such charges to Seller.
  13. DISPUTE RESOLUTION/ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
    Any claims, disputes and controversies related in any way to the Sales Agreement including but not limited to Claims related to the purchase of Product, (“Claims”) shall be resolved by arbitration in the Governing State (as defined below). “Claims” shall be given the broadest meaning possible and includes, without limitation, Claims against any of Seller’s owners, shareholders, affiliates, subsidiaries, parents, directors, officers, employees, representatives, agents, successors, or assigns. “Claims” does not include Seller’s bond and/or lien claims, nor claims for non-payment, all of which may be enforced and/or resolved in a court of law, at Seller’s discretion. BUYER AND SELLER WAIVE ANY RIGHT TO HAVE CLAIMS DECIDED BY A JUDGE OR JURY. Except as expressly stated in the Class Action Waiver, the arbitrator shall have exclusive authority to decide all issues related to the enforcement, applicability, scope, validity, and interpretation of this agreement to arbitrate, including but not limited to any unconscionability challenge. Notwithstanding this agreement to arbitrate, the Buyer and Seller may (in each party’s sole discretion) elect to pursue Claims in small claims court on an individual basis only, rather than arbitrate, if the Claims fall within the jurisdiction of the applicable small claims court. This Sales Agreement evidences a transaction in interstate commerce. All issues relating to this agreement to arbitrate and Class Action Waiver will be determined pursuant to federal substantive law and the substantive and procedural provisions of the Federal Arbitration Act (“Act”), 9 U.S.C. §§ 1-16, or to the extent held applicable under federal substantive law, the law of the Governing State, without regard to conflicts of law. Buyer and Seller further agree that: (1) any dispute or claim arising out of or relating to this Sales Agreement will proceed solely on an individual, non-class, non-representative basis; and (2) the parties expressly waive any right or ability to bring, assert, maintain, or participate as a class member in, a class action, representative action, or private attorney general action (collectively, “Class Action”) in court, arbitration, or any other forum regarding any Claim, and expressly waive the right for anyone to do so on our behalf. NO CLAIM WILL BE ARBITRATED ON A CLASS ACTION BASIS. The Parties agree that the enforcement, applicability, scope, validity, and/or interpretation of this Class Action Waiver shall be decided by a court of competent jurisdiction and not by an arbitrator. If this Class Action Waiver is ruled unenforceable or is interpreted to not prevent a Class Action as to any particular Claim, then the agreement to arbitrate shall be null and void as to that Claim, which shall be resolved in a court of law (and not in arbitration) after the arbitration on the other claims has ended. The Parties agree that if an arbitrator renders a decision regarding the enforcement, applicability, scope, validity, and/or interpretation of this Class Action Waiver, or determines that a Class Action may proceed in arbitration, then: (1) the arbitrator has exceeded his powers, pursuant to §10(a)(4) of the FAA, by taking such action; (2) either party may seek immediate review of that decision by a court of competent jurisdiction; and (3) a court of competent jurisdiction shall apply a “de novo” standard of review of that decision if such standard of review is allowed by the common law or statutes of that state. The arbitration shall be administered by the American Arbitration Association (“AAA”). The arbitration shall be conducted pursuant to the AAA Commercial Arbitration Rules if the Buyer is a company or other commercial entity. The arbitration shall be conducted pursuant to the AAA Consumer Arbitration Rules if the Buyer is an individual whose purchase is intended for personal, family or household use. Information on AAA and a copy of the applicable Rules may be found at the following number and URL: American Arbitration Association, (800) 778-7879, www.adr.org. Each party will pay his/her/its own attorney’s fees, as well as costs relating to proof and witnesses, regardless of who prevails, unless applicable law and/or the applicable Rules gives a party the right to recover any of those fees from the other party. The arbitrator(s) is not empowered to award consequential, incidental, treble, exemplary or punitive damages and each party hereby irrevocably waives any right to recover such damages with respect to any dispute resolved in arbitration. If a court determines that a party is making a statutory claim where such damages are provided for by the statute and cannot be waived, then that claim for statutory damages shall be resolved in court, rather than arbitration, and after the arbitration has ended, but only if the Arbitrator(s) have ruled in favor of that party on the liability of that statutory claim. If any portion of this agreement to arbitrate and Class Action Waiver is deemed invalid or unenforceable, all the remaining portions of this Arbitration Agreement and Class Action Waiver shall nevertheless remain valid and enforceable, except as provided in the Class Action Waiver.
    CONSUMER OPT-OUT PROVISION. An individual Buyer whose purchase is intended for personal, family, or household use (“Consumer Buyer”) shall have the right to opt out of this agreement to arbitrate and Class Action Waiver by providing written notice of intention to do so within thirty (30) days of the date of this Sales Agreement to: Holcim Legal Department, 6211 Ann Arbor Road, Dundee, Michigan 48131, ATTN: “Arbitration/Class Action Waiver Opt Out.” Consumer Buyer must include in the opt out notice: (a) Consumer Buyer’s name and address; (b) the date of this Sales Agreement. The parties disclaim any applicability of the U.N. Convention on the International Sale of Goods, 1980, and any successor treaty.
  14. TERMINATION. Seller may terminate the Sales Agreement under the following conditions, and in the manner specified: (i) immediately upon written notice of termination to Buyer if Buyer breaches or is in default of any obligation hereunder, and the breach or default is incapable of cure, or if it is capable of cure, has not been cured within ten (10) days after receipt of written notice from the injured party; (ii) immediately upon written notice to Buyer if Buyer has filed for dissolution, bankruptcy, insolvency, receivership or for some similar method of protection against creditors; or (iii) immediately upon Buyer’s failure to pay Seller’s invoices in accordance with the payment terms stated above or as otherwise agreed in writing by authorized representatives of both parties. If the Sales Agreement is terminated by Seller because of Buyer’s default or breach, Seller may (in addition to any other rights or remedies provided herein or at law or in equity) by written notice to Buyer, terminate its obligations, or any part thereof, without any liability to Seller. Seller is entitled to reasonable reimbursement from Buyer for any labor, material or other expenses incurred in connection with the Sales Agreement, plus a reasonable amount for overhead.
  15. FORCE MAJEURE AND ALLOCATION. Seller is not liable or responsible for delay or failure to perform any of Seller’s obligations under the Sales Agreement occasioned by (i) any cause beyond its reasonable control, including, but not limited to, labor disputes shortages, disputes, strikes or lockouts; breakdowns or accidents; industry disturbance; fires, declared or undeclared war, epidemics, pandemics, computer malfunctions, data breaches, civil unrest, riots, shortage or inability to obtain materials or supplies, delay in transportation; governmental, regulatory or legal action; unusually severe weather conditions, earthquakes, floods, or other acts of God, or delays of a subcontractor of Seller if such delay arises out of causes beyond the reasonable control of both Seller and the subcontractor; or (ii) by acts or omissions of Buyer, including, but not limited to, Buyer’s failure to promptly comply with the terms of payment under the Sales Agreement (“Force Majeure”). The date of delivery shall be extended for a period equal to the time lost by reason of any of Force Majeure. During times of shortage, Seller shall have the right to allocate among its customers in accordance with Section 2-615 of the UCC.
  16. INDEMNIFICATION. To the maximum extent allowed by law, Buyer shall defend and indemnify Seller and its employees, officers, directors, and agents against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorneys’ fees) that Seller may incur or be obligated to pay as a result of: (i) Buyer’s negligence or Buyer’s use, ownership, maintenance, transfer, transportation or disposal of the Products; (ii) any infringement or alleged infringement of the industrial and intellectual property rights of others arising from Buyer’s plans, specifications (including Buyer’s trademarks and brand names) or production or use of the Products ordered by Buyer; (iii) Buyer’s violation or alleged violation of any federal, state, county or local laws or regulation, including without limitation, the laws and regulations governing product safety, labeling, packaging and labor practices; or (iv) Buyer’s breach of the Sales Agreement.
  17. CONFIDENTIALITY. To the extent Buyer receives or is exposed to Seller’s confidential or proprietary information, including but not limited to designs, specifications, design mixes, instructions, trade secrets, data or know-how pertaining to the Products covered under the Purchase Order (collectively “Confidential Information”), Buyer shall maintain the Confidential Information of Seller and will use such information only for the purposes of the Purchase Order. Buyer shall not divulge, disclose or in any way distribute or make use of Confidential Information, and shall not manufacture, repair (or enable a third party to manufacture or repair), alter, modify, decompile, disassemble, reverse engineer, translate or create derivative works of Seller’s Products.
  18. ENTIRE AGREEMENT. The Sales Agreement comprises the complete and final agreement between Seller and Buyer and supersedes all prior negotiations, proposals, correspondence, communications, discussions, representations, commitments, understandings or agreements between Seller and Buyer, either written or oral, on its subject. No other agreement, quotation or acknowledgment in any way purporting to modify any of the terms of the Sales Agreement is binding upon Seller unless made in writing and signed by Seller’s authorized agent. The Sales Agreement may not be altered or modified except by written agreement of Seller and Buyer. Any other representations or statements (whether oral or written) made by any person, including employees or other agents of Seller, that are inconsistent with the Sales Agreement must be disregarded by Buyer, do not constitute warranties and are not binding upon Seller. If any model or sample was shown to Buyer, such model or sample was used merely to illustrate the general type and quality of goods and not to represent that the Products would necessarily conform to the model or sample.
  19. SUCCESSORS AND ASSIGNS. The Sales Agreement binds and inures to the benefit of Buyer and Seller and their respective successors and permitted assigns. Buyer may not assign any interest in, nor delegate any obligation under the Sales Agreement, without Seller’s prior writtenconsent. Any assignment in violation of this clause shall be null and void.
  20. GOVERNING LAW. The validity, construction and performance of the Sales Agreement is governed by, and must be construed in accordance with, the law of the state where work is performed or Product is shipped (the “Governing State”), without regard to such state’s conflicts of law provisions. NOTE: For work performed in or Product shipped to New York, any disputes relating to payments and/or debts will be governed by the laws of the state of Illinois, without regard to its conflicts of law provisions.
  21. JURISDICTION AND VENUE. Buyer irrevocably submits and agrees to the jurisdiction of the state and federal courts of the Governing State. Any action, suit or proceeding related to, or in connection with, the Sales Agreement and, to the extent permitted by applicable law, Buyer waives and agrees not to assert as a defense in any such action, suit or proceeding any claim: (i) that Buyer is not personally subject to the jurisdiction of the state and federal courts in the Governing State; (ii) that the venue of the action, suit or proceeding is improper; (iii) that the action, suit or proceeding is brought in an inconvenient forum; or (iv) that the subject matter of the Sales Agreement may not be enforced in or by the state or federal courts of the Governing State. Without prejudice to any other mode of service, Buyer consents to service of process relating to any such proceedings by personal or prepaid mailing (air mail if international) in registered or certified form a copy of the process to the Buyer at the address set forth in Section 24.
  22. WAIVER. The waiver by Seller of any breach by Buyer of any provision of the Sales Agreement may not be construed to be either a waiver of the provision itself as to subsequent application or any other provision of the Sales Agreement. The failure of a party to enforce any of the provisions of the Sales Agreement or any Purchase Order will not waive such provisions, nor will any such failure prejudice or affect the other party’s right to enforce that provision in the future.
  23. SEVERABILITY. If any provision of the Sales Agreement is held by a court of competent jurisdiction to be unenforceable, invalid, or contrary to law or public policy, the remaining provisions of the Sales Agreement will not be affected, and shall remain in full force and effect.
  24. NOTICES. No notice or other communication under the Sales Agreement is sufficient to affect any rights, remedies or obligations of either party unless the notice or communication is in writing and (as elected by the party giving the notice) is: (i) personally delivered; (ii) transmitted by facsimile (with a receipt acknowledgment); (iii) transmitted by electronic computer mail; (iv) transmitted by a recognized courier service; or (v) mailed (air mail if international) in registered or certified form, to the party to which notice or communication is being given at the following address: (a) if to Seller, at its address designated on the face of the Written Quotation - ATTN: SALES DEPARTMENT; and (b) if to Buyer, at its address designated on the face of the Written Quotation. Notices or communications shall be deemed to have been duly given: (i) on the date of receipt if delivered personally; (ii) on the date of transmission if delivered by facsimile; (iii) on the date of transmission if transmitted by electronic computer mail; (iv) one day after pickup by courier if delivered by courier; or (v) five days after mailing if delivered by the postal service. Either party may change its address by providing notice to the other party.
    • NOTICES RELATED TO DEBT DISPUTE: Notwithstanding the foregoing, Buyer shall submit notices regarding a dispute involving payment and/or debt, to the following address: Holcim Treasury Department - DISPUTES, 6211 Ann Arbor Road, Dundee, MI 48131 ATTN: Gina Santacroce. DEBT AND/OR PAYMENT NOTICES SENT TO AN ADDRESS AND RECIPIENT OTHER THAN THE DESIGNATED DEBT DISPUTE OFFICE ARE NULL AND VOID.
  25. CONSTRUCTION. The headings of the Sections in these Terms are provided for convenience only and may not be considered in the interpretation of the Sales Agreement. The parties agree that the provisions of the Sales Agreement may not be construed in favor of or against either party by reason of the extent to which a party or its professional advisors participated in the preparation of the Sales Agreement.
  26. SURVIVAL. The terms of the Sales Agreement that by their nature are reasonably intended by the parties to survive the Sales Agreement’s expiration or earlier termination, including, but not limited to, Sections 7, 8, 9, 10, 11, 12, 13, 16, 20, 21 and this Section 26 shall survive the expiration or termination of the Sales Agreement.

Holcim US CTL Sales Terms

  1. ACCEPTANCE. These Terms and Conditions of Sale (“Terms”), along with any written quotation issued by Carrier to Buyer (“Written Quotation”) (the Terms and the Written Quotation are collectively the “Agreement”) contain the full understanding of Carrier and Buyer for transportation services (“Services”) for goods (“Products”) and supersedes all other agreements, written or oral, regarding its subject matter. Except as otherwise provided by written agreement executed by both Buyer and Carrier, these Terms and Conditions shall control, and no prior or subsequent understanding, agreement, term, condition, or trade custom at variance with or supplemental to these Terms and Conditions shall be binding on the Carrier. Loading of the Products hereunder shall constitute acceptance of these Terms and Conditions. Products will be deemed accepted by Buyer unless Carrier is notified in writing of non-acceptance within ten days after receipt by Buyer. Any claim with respect to Services provided hereunder, including claims based on shortages of goods, will be waived if not brought in writing within ten (10) days of receipt of that shipment or delivery. Buyer’s rights with respect to Services rightfully rejected will be limited to the rights set forth in Article 5 below. Buyer may not cancel or terminate for convenience, or direct suspension of manufacture, except with payment of Carrier’s cancellation charges.
  2. SHIPMENTS; TITLE: RISK OF LOSS. Buyer may direct Product to be delivered to Buyer at either Buyer’s facility or any other location communicated to Carrier in advance of loading date. When Product is delivered to Buyer: (i) prices are F.O.B. Buyer’s or other facility, (ii) title and risk of loss pass to Buyer upon delivery to Buyer’s or other facility, (iii) shipments will be made from points, over routes by Carrier, (iv) Carrier’s shipping dates are estimates and dates of delivery are not guaranteed, (v) Buyer shall bear destination demurrage and detention charges, and (vi) rail and truck shipments are subject to rates, rules and regulations in carriers’ tariffs applicable on date of shipment. Carrier’s or any seller’s truck scale weights and/or carrier’s stenciled tare weights will be used and shall be conclusive.
  3. TERMS OF PAYMENT. Upon approval of Buyer’s credit, all invoices will be due at the gross amount and payable not later than the last day of the month following shipment. Each shipment shall be considered a separate and independent transaction and payment therefor shall be made accordingly. All invoices are payable at the address shown on the invoice. Invoices not paid in full by the last day of the month following the month of shipment shall be considered past-due and shall bear interest at the rate of 1½% per month or the maximum rate permitted by applicable law, if lower, thereafter until paid. In addition to the interest, upon Buyer’s breach or default, Carrier shall be entitled to all rights under the Uniform Commercial Code (“UCC”) and all rights at law and in equity; Buyer agrees to reimburse Carrier for all collection costs, court costs, attorneys’ fees and expenses, and other charges incurred by Carrier. If at any time financial responsibility of the Buyer becomes impaired or unsatisfactory to Carrier, Carrier may require payment or satisfactory security or guaranty in advance of shipment. If Buyer fails to deliver such security or guaranty, to make a payment when due, or to comply with any other term, Carrier reserves the right to cancel transportation of all unfilled orders without notice.
  4. SECURITY INTEREST. Carrier shall have the right to retain a security interest in the Products shipped and to require Buyer to execute a security agreement and authorize filing of financing statements under the applicable provisions of the UCC. Buyer hereby grants such security interest to Carrier and authorizes such filing.
  5. LIMITATION OF LIABILITY AND REMEDIES. CARRIER’S TOTAL LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE TRANSPORTATION PRICE OF PRODUCTS TRANSPORTED UNDER THIS AGREEMENT OR CORRESPONDING PURCHASE ORDER GIVING RISE TO THE CLAIM. THE SOLE AND EXCLUSIVE REMEDY OF BUYER OR ANY OTHER PARTY AGAINST CARRIER FOR ALL CLAIMS OF ANY KIND, WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, FOR ANY LOSS OR DAMAGES ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THIS AGREEMENT SHALL BE REFUND OF THE PRICE PAID FOR THE SERVICE. NO OTHER REMEDY SHALL BE AVAILABLE TO BUYER INCLUDING, BUT NOT LIMITED TO INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, PUNITIVE DAMAGES, INJURY TO PERSONS OR PROPERTY OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL LOSS , REGARDLESS OF WHETHER THOSE DAMAGES WERE FORESEEABLE AND EVEN IF SELLER IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER AND CARRIER AGREE THAT THE EXCLUSIVE REMEDY SET FORTH HEREIN DOES NOT CAUSE THE AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. AS PART OF THE CONSIDERATION FOR THE TRANSPORTATION OF THE PRODUCT, BUYER AGREES NOT TO SUE CARRIER IN RESPECT OF THESE TERMS OR ANY DOCUMENT RELATED TO THE PRODUCTS OR SERVICES DESCRIBED HEREIN OR THEREIN (UNLESS CARRIER HAS BREACHED ONE OF THE DUTIES EXPRESSLY CREATED HEREUNDER), AND BUYER FURTHER AGREES TO INDEMNIFY CARRIER AND ITS EMPLOYEES, OFFICERS, DIRECTORS, AND AGENTS FROM ANY AND ALL CLAIMS, COSTS, FEES AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, THAT MAY BE INCURRED OR SPENT INCIDENT TO ANY SUCH CLAIM BY ANY PARTY (UNLESS CARRIER HAS BREACHED ONE OF THE DUTIES EXPRESSLY CREATED HEREUNDER, AND THEN LIMITED ONLY TO THAT CLAIM ALONE).
  6. TECHNICAL INFORMATION; HAZARDS AND PRECAUTIONARY PROCEDURES; INDEMNITY. Any technical information or assistance Carrier provides is given and accepted at Buyer’s risk and is not a warranty or a specification. Buyer agrees that it will familiarize itself with all hazards and precautionary procedures with respect to the handling, transportation or use of the Product and will manage the Product accordingly. Buyer agrees to provide or make available such SDS to all persons who may come into contact with the Product including its employees and customers. Buyer agrees to indemnify Carrier (and its employees, officers, directors, and agents) for any claims made against Carrier or its affiliates, and for associated damages and expenses (including reasonable attorneys’ fees and expenses), due, in whole or in part, to Buyer’s failure to familiarize itself with such hazards and precautionary procedures, to manage accordingly or to provide such information as set forth above or required by law.
  7. DUTIES AND TAXES. All duties and taxes of any governmental authority payable in respect to the Services to the point of delivery are for the account of Buyer, except as otherwise set out herein.
  8. FORCE MAJEURE. Carrier shall not be liable for any expense, loss or damage due to its failure to perform hereunder as caused by (i) acts of God; acts of war; acts of public enemy; data breaches; epidemics/pandemics; fire; unusually severe weather conditions, earthquakes, or floods; labor shortages, disputes, strikes or lockouts; breakdowns or accidents; plant shutdowns; inability to secure rail cars, trucks or barges or other delays in transportation; inability to procure supplies or other materials; or delays of a subcontractor of Seller if such delay arises out of causes beyond the reasonable control of both Seller and the subcontractor; government actions, regulations, orders or rulings; acts or omissions of Buyer; or any other events or other conditions beyond Carrier’s control, whether similar or dissimilar to the foregoing acts or occurrences.
  9. NOTICES. No notice or other communication under the Agreement is sufficient to affect any rights, remedies or obligations of either party unless the notice or communication is in writing and (as elected by the party giving the notice) is: (i) personally delivered, (ii) transmitted by facsimile (with a receipt acknowledgment), (iii) transmitted by electronic computer mail, (iv) transmitted by a recognized courier service, or (v) mailed (air mail if international) in registered or certified form, to the party to which notice or communication is being given at its respective address designated on the face of the Written Quotation or as otherwise designated in writing. Notices or communications shall be deemed to have been duly given (i) on the date of receipt if delivered personally, (ii) on the date of transmission if delivered by facsimile, (iii) on the date of transmission if transmitted by electronic computer mail, (iv) one day after pickup by courier if delivered by courier or (v) five days after mailing if delivered by the postal service. Either party may change its Notice address by providing written notice to the other party.
    NOTICES RELATED TO DEBT DISPUTE: Notwithstanding the foregoing, Buyer shall submit notices regarding a dispute involving payment and/or debt, to the following address: Holcim Treasury Department - DISPUTES, 6211 Ann Arbor Road, Dundee, MI 48131 ATTN: Gina Santacroce. DEBT AND/OR PAYMENT NOTICES SENT TO AN ADDRESS AND RECIPIENT OTHER THAN THE DESIGNATED DEBT DISPUTE OFFICE ARE NULL AND VOID.
  10. GOVERNING LAW. The validity, construction and performance of the Agreement is governed by, and must be construed in accordance with, the law of the state where Product is shipped (the “Governing State”), without regard to such state’s conflicts of law provisions.
  11. JURISDICTION AND VENUE. Buyer irrevocably submits and agrees to the jurisdiction of the state and federal courts of the Governing State. Any action, suit or proceeding related to, or in connection with, the Agreement and, to the extent permitted by applicable law, Buyer waives and agrees not to assert as a defense in any such action, suit or proceeding any claim (i) that Buyer is not personally subject to the jurisdiction of the state and federal courts in the Governing State; (ii) that the venue of the action, suit or proceeding is improper; (iii) that the action, suit or proceeding is brought in an inconvenient forum; or (iv) that the subject matter of the Agreement may not be enforced in or by the state or federal courts of the Governing State. Without prejudice to any other mode of service, Buyer consents to service of process relating to any such proceedings by personal or prepaid mailing (air mail if international) in registered or certified form a copy of the process to the Buyer at the address set forth in Section 9.
  12. WAIVER. The waiver by Carrier of any breach by Buyer of any provision of the Agreement may not be construed to be either a waiver of the provision itself as to subsequent application or any other provision of the Agreement. The failure of a party to enforce any of the provisions of the Agreement or any Purchase Order will not waive such provisions, nor will any such failure prejudice or affect the other party’s right to enforce that provision in the future.
  13. SEVERABILITY. If any provision of the Agreement is held by a court of competent jurisdiction to be unenforceable, invalid, or contrary to law or public policy, the remaining provisions of the Agreement will not be affected, and shall remain in full force and effect.
  14. TERMINATION. Carrier may terminate the Agreement under the following conditions, and in the manner specified: (i) immediately upon written notice of termination to Buyer if Buyer materially breaches or is in default of any obligation hereunder, and the breach or default is incapable of cure, or if it is capable of cure, has not been cured within ten (10) days after receipt of written notice from the injured party; (ii) immediately upon written notice to Buyer if Buyer has filed for dissolution, bankruptcy, insolvency, receivership or for some similar method of protection against creditors; or (iii) immediately upon Buyer’s failure to pay Carrier’s invoices in accordance with the payment terms stated above or as otherwise agreed in writing by authorized representatives of both parties. If the Agreement is terminated by Carrier because of Buyer’s default or breach, Carrier may (in addition to any other rights or remedies provided herein or at law or in equity) by written notice to Buyer, terminate its obligations, or any part thereof, without any liability to Carrier. Carrier is entitled to reasonable reimbursement from Buyer for any labor, material or other expenses incurred in connection with the Agreement, plus a reasonable amount for overhead.
  15. SUCCESSORS AND ASSIGNS. The Agreement binds and inures to the benefit of Buyer and Carrier and their respective successors and permitted assigns. Buyer may not assign any interest in, nor delegate any obligation under the Agreement, without Carrier’s prior written consent. Any assignment in violation of this clause shall be null and void.
  16. ENTIRE AGREEMENT. The Agreement comprises the complete and final agreement between Carrier and Buyer and supersedes all prior negotiations, proposals, correspondence, communications, discussions, representations, commitments, understandings or agreements between Carrier and Buyer, either written or oral, on its subject. No other agreement, quotation or acknowledgment in any way purporting to modify any of the t erms of the Agreement is binding upon Carrier unless made in writing and signed by Carrier’s authorized agent. The Agreement may not be altered or modified except by written agreement of Carrier and Buyer. Any other representations or statements (whether oral or written) made by any person, including employees or other agents of Seller, that are inconsistent with the Agreement must be disregarded by Buyer, do not constitute warranties and are not binding upon Carrier.
  17. CONSTRUCTION. The headings of the Sections in these Terms are provided for convenience only and may not be considered in the interpretation of the Agreement. The parties agree that the provisions of the Agreement may not be construed in favor of or against either party by reason of the extent to which a party or its professional advisors participated in the preparation of the Agreement.
  18. SURVIVAL. The terms of the Agreement that by their nature are reasonably intended by the parties to survive the Agreement’s expiration or earlier termination, including, but not limited to, Sections 4, 5, 6, 7, 9, 10, 11, and this section 18 shall survive the expiration or termination of the Agreement.

Holcim US KOST Sales Terms

  1. ACCEPTANCE. These Standard Terms and Conditions (“Terms”) and any written quotation issued by Carrier to Buyer (the “Written Quotation”) (the Terms and the Written Quotation are collectively the “Agreement”) govern transportation services (the “Services”) of products and materials (“Products”) by Kost, Inc. (“Carrier”) to Buyer. Buyer’s assent to these Terms shall be presumed from Buyer’s receipt of Terms or Buyer’s acceptance of all or any part of the Products delivered; no addition or modification of these Terms shall be binding upon Carrier unless agreed to by Carrier in writing. If a Buyer’s “Purchase Order” (defined as a formal request for Services) or other correspondence or documentation contains terms or conditions contrary to the terms and conditions contained herein, Carrier’s acceptance of any order for services shall not: (i) be construed as assent to such contrary or additional terms and conditions; or (ii) constitute a waiver by Carrier of any of the terms and conditions contained in these Terms. Any additional, inconsistent or different “Conditions of Purchase” or the like of Buyer contained in Buyer’s Purchase Order or other document submitted to Carrier at any time, whether before or after the date hereof, are hereby expressly rejected by Carrier.
  2. PRICE. The price of Services does not include sales, use, excise or any other taxes or assessments levied by any federal, state, m unicipal or other governmental authority now in force or expected in the future, unless Carrier expressly agrees otherwise in writing. In case of dispute between verbal or faxed quotations and a Written Quotation provided by Carrier to Buyer, the Written Quotation shall be the controlling document. If during the performance of this Agreement, the price of Services or costs of labor increase, the price of Services under this Agreement shall be equitably adjusted by an amount reasonably necessary to cover any such price increases. Such price increases shall be documented through quotes, invoices, or receipts.
  3. PAYMENT. Payments must be made to Carrier in U.S. dollars within thirty (30) days of Buyer’s receipt of the Products or invoice, whichever is sooner. Payments not received when due will bear interest at the lower of 18% per annum or the maximum rate allowed by applicable law. Carrier reserves the right to limit or cancel the credit of Buyer, and Carrier may require or demand payment or adequate assurances of performance from Buyer prior to taking any preparatory steps for performing the Agreement or transportation of the Products. If Buyer is delinquent in any payment to Carrier, then until all delinquent amounts and late interest, if any, are paid Carrier may, at its discretion: (i) be relieved of its obligations with respect to guarantees, including, without limitation, delivery times; (ii) refuse to process any credit to which Buyer may otherwise have been entitled; (iii) set off any credit or sum owed by Carrier to Buyer against any undisputed amount owed by Buyer to Carrier; (iv) withhold future transportation services to Buyer; (v) declare Buyer’s performance in breach and/or terminate any Purchase Order; (vi) deliver future shipments on a cash-with-Purchase Order or cash-in-advance basis; (vii) charge storage or inventory carrying fees on Products; (viii) recover all costs of collection including, without limitation, reasonable attorneys’ fees; or (ix) exercise any of the above rights and remedies as may be permitted by applicable law. Notwithstanding the foregoing payment terms, in the event of a conflict or discrepancy between the payment terms set forth on the face of a Written Quotation and the terms set forth herein, the payment terms included on such Written Quotation shall control and govern.
  4. SHIPMENT. Unless otherwise specified by Carrier, all prices are FOB from any seller’s manufacturing facility. Buyer must pay all transportation costs of the Products. Carrier must endeavor to meet the shipping date specified by Buyer. In no event will Carrier be liable for any loss or damage (including any loss of use or loss of profits) incurred by the Buyer if Carrier is unable to deliver on a particular date, and Buyer shall have no claim for damages resulting therefrom. Carrier reserves the right to impose additional charges for any special routing, packing, labeling, handling or insurance requested by Buyer.
  5. RISK OF LOSS. All risk of loss to the Products passes to Buyer as the Products are loaded onto the Carrier. Buyer must obtain adequate insurance to cover the Products from the time risk of loss has passed from any seller.
  6. LIMITATION OF LIABILITY AND REMEDIES. IN NO EVENT IS CARRIER RESPONSIBLE TO BUYER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ALL DIRECT AND INDIRECT LOSS OF PROFITS, LOSS OF REVENUE OR LOSS OF USE, REGARDLESS OF WHETHER THOSE DAMAGES WERE FORESEEABLE AND EVEN IF CARRIER IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. CARRIER’S TOTAL LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE TRANSPORTATION PRICE OF PRODUCTS MOVED UNDER THIS AGREEMENT OR CORRESPONDING PURCHASE ORDER GIVING RISE TO THE CLAIM. THE SOLE AND EXCLUSIVE REMEDY OF BUYER OR ANY OTHER PARTY AGAINST CARRIER FOR ALL CLAIMS OF ANY KIND, WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, FOR ANY LOSS OR DAMAGES ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT SHALL BE REFUND OF THE TRANSPORTATION PRICE PAID. NO OTHER REMEDY SHALL BE AVAILABLE TO BUYER. BUYER AND CARRIER AGREE THAT THE EXCLUSIVE REMEDY SET FORTH HEREIN DOES NOT CAUSE THE AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. Except as expressly set forth herein, nothing herein or in any quotation shall: (i) create any right, cause of action or claim of, for, or on behalf of the Buyer, its, heirs, successors, or assigns, or any third party under any theory, whether in contract, tort, negligence, strict liability or otherwise, other than the rights expressly set forth and created herein; (ii) create, modify or extend any express or implied warranties, or any limitations of those warranties; (iii) give the Buyer any rights to claim any direct or indirect damages of any nature, including but not limited to any incidental or consequential damages that may arise out of the use of any of the Product described herein or in such quotation or any parts thereof, or any Product replacement provided by any seller. As part of the consideration for transportation of the Product, Buyer agrees not to sue Carrier in respect of these Terms or any quotation related to the Services described herein or therein (unless Carrier has breached one of the duties expressly created hereunder), and Buyer further agrees to indemnify Carrier from any and all claims, costs, fees and expenses, including reasonable attorneys’ fees, that may be incurred or spent incident to any such claim by any party (unless Carrier has breached one of the duties expressly created hereunder, and then limited only to that claim alone).
  7. ENVIRONMENTAL FEE & FUEL SURCHARGE. Carrier is committed to help ensure a clean and safe environment for our employees, our customers, and our communities. Carrier is also committed to controlling and covering its costs so we can continue to provide the best overall value. Environmentally-related costs and fuel-related costs are something Carrier cannot fully control. Carrier’s environmental fee and fuel surcharge are meant to help us cover these costs and to help us achieve an acceptable operating margin. The environm ental fee and fuel surcharge are separate line items on customer invoices. Carrier’s environmental fee helps to cover our costs and expenses to operate, on a company-wide basis, in a safe and environmentally responsible manner. The amount or percentage of the environmental component is not specifically tied to the direct or indirect costs to service Buyer’s account, but instead to the Carrier’s overall costs and operating margin goals. Similarly, Carrier’s fuel surcharge is a charge to cover the Carrier’s overall costs associated with the transportation of products, including but not limited to the cost of fuel, and the incremental costs for unexpected mileage, wait times, and traffic patterns, and to help meet margin goals.
    NOT A GOVERNMENTAL TAX; FUTURE CHANGES. Carrier’s environmental fee and fuel surcharge are not taxes, surcharges, or fees imposed by or remitted to any governmental or regulatory agency; they are Carrier’s charges. The environmental fee and fuel surcharge may be changed at the discretion of Carrier.
  8. DISPUTE RESOLUTION/ARBITRATION AGREEMENT AND CLASS ACTION WAIVER..
    Any claims, disputes and controversies related in any way to the Agreement (“Claims”) shall be resolved by arbitration in the Governing State (as defined below). “Claims” shall be given the broadest meaning possible and includes, without limitation, Claims against any of Carrier’s owners, parents, shareholders, affiliates, subsidiaries, directors, officers, employees, representatives, agents, successors, or assigns. “Claims” does not include Carrier’s bond and/or lien claims, nor claims for non-payment, all of which may be enforced and/or resolved in a court of law, at Carrier’s discretion. BUYER AND CARRIER WAIVE ANY RIGHT TO HAVE CLAIMS DECIDED BY A JUDGE OR JURY. Except as expressly stated in the Class Action Waiver, the arbitrator shall have exclusive authority to decide all issues related to the enforcement, applicability, scope, validity, and interpretation of this agreement to arbitrate, including but not limited to any unconscionability challenge. Notwithstanding this agreement to arbitrate, the Buyer and Carrier may (in each party’s sole discretion) elect to pursue Claims in small claims court on an individual basis only, rather than arbitrate, if the Claims fall within the jurisdiction of the applicable small claims court. This Agreement evidences a transaction in interstate commerce. All issues relating to this agreement to arbitrate and Class Action Waiver will be determined pursuant to federal substantive law and the substantive and procedural provisions of the Federal Arbitration Act (“Act”), 9 U.S.C. §§ 1-16, or to the extent held applicable under federal substantive law, the law of the Governing State, without regard to conflicts of law. Buyer and Carrier further agree that: (i) any dispute or claim arising out of or relating to this Agreement will proceed solely on an individual, non-class, non-representative basis; and (ii) the parties expressly waive any right or ability to bring, assert, maintain, or participate as a class member in, a class action, representative action, or private attorney general action (collectively, “Class Action”) in court, arbitration, or any other forum regarding any Claim, and expressly waive the right for anyone to do so on our behalf. NO CLAIM WILL BE ARBITRATED ON A CLASS ACTION BASIS. The Parties agree that the enforcement, applicability, scope, validity, and/or interpretation of this Class Action Waiver shall be decided by a court of competent jurisdiction and not by an arbitrator. If this Class Action Waiver is ruled unenforceable or is interpreted to not prevent a Class Action as to any particular Claim, then the agreement to arbitrate shall be null and void as to that Claim, which shall be resolved in a court of law (and not in arbitration) after the arbitration on the other claims has ended. The Parties agree that if an arbitrator renders a decision regarding the enforcement, applicability, scope, validity, and/or interpretation of this Class Action Waiver, or determines that a Class Action may proceed in arbitration, then: (i) the arbitrator has exceeded his powers, pursuant to §10(a)(4) of the FAA, by taking such action; (ii) either party may seek immediate review of that decision by a court of competent jurisdiction; and (iii) a court of competent jurisdiction shall apply a “de novo” standard of review of that decision if such standard of review is allowed by the common law or statutes of that state. The arbitration shall be administered by the American Arbitration Association (“AAA”). The arbitration shall be conducted pursuant to the AAA Commercial Arbitration Rules if the Buyer is a company or other commercial entity. The arbitration shall be conducted pursuant to the AAA Consumer Arbitration Rules if the Buyer is an individual whose purchase is intended for personal, family or household use. Information on AAA and a copy of the applicable Rules may be found at the following number and URL: American Arbitration Association, (800) 778-7879, www.adr.org. Each party will pay his/her/its own attorney’s fees, as well as costs relating to proof and witnesses, regardless of who prevails, unless applicable law and/or the applicable Rules gives a party the right to recover any of those fees from the other party. The arbitrator(s) is not empowered to award consequential, incidental, treble, exemplary or punitive damages and each party hereby irrevocably waives any right to recover such damages with respect to any dispute resolved in arbitration. If a court determines that a party is making a statutory claim where such damages are provided for by the statute and cannot be waived then that claim for statutory damages shall be resolved in court, rather than arbitration, and after the arbitration has ended, but only if the Arbitrator(s) have ruled in favor of that party on the liability of that statutory claim. If any portion of this agreement to arbitrate and Class Action Waiver is deemed invalid or unenforceable, all the remaining portions of this Arbitration Agreement and Class Action Waiver shall nevertheless remain valid and enforceable, except as provided in the Class Action Waiver.
    CONSUMER OPT-OUT PROVISION. An individual Buyer whose purchase is intended for personal, family, or household use (“Consumer Buyer”) shall have the right to opt out of this agreement to arbitrate and Class Action Waiver by providing written notice of intention to do so within thirty (30) days of the date of this Sales Agreement to: Holcim Legal Department, 6211 Ann Arbor Road, Dundee, Michigan 48131, ATTN: “Arbitration/Class Action Waiver Opt Out.” Consumer Buyer must include in the opt out notice: (a) Consumer Buyer’s name and address; and (b) the date of this Agreement. The parties disclaim any applicability of the U.N. Convention on the International Sale of Goods, 1980, and any successor treaty.
  9. TERMINATION. Carrier may terminate the Agreement under the following conditions, and in the manner specified: (i) immediately upon written notice of termination to Buyer if Buyer materially breaches or is in default of any obligation hereunder, and the breach or default is incapable of cure, or if it is capable of cure, has not been cured within ten (10) days after receipt of written notice from the injured party; (ii) immediately upon written notice to Buyer if Buyer has filed for dissolution, bankruptcy, insolvency, receivership or for some similar method of protection against creditors; or (iii) immediately upon Buyer’s failure to pay Carrier’s invoices in accordance with the payment terms stated above or as otherwise agreed in writing by authorized representatives of both parties. If the Agreement is terminated by Carrier because of Buyer’s default or breach, Carrier may (in addition to any other rights or remedies provided herein or at law or in equity) by written notice to Buyer, terminate its obligations, or any part thereof, without any liability to Carrier. Carrier is entitled to reasonable reimbursement from Buyer for any labor, material or other expenses incurred in connection with the Agreement, plus a reasonable amount for overhead.
  10. FORCE MAJEURE AND ALLOCATION. Carrier is not liable or responsible for delay or failure to perform any of Carrier’s obligations under the Agreement occasioned by: (i) any cause beyond its reasonable control, including, but not limited to, labor disputes shortages, disputes, strikes or lockouts; breakdowns or accidents; industry disturbance; fires, declared or undeclared war, epidemics, pandemics, computer malfunctions, data breaches, civil unrest, riots, shortage or inability to obtain materials or supplies, delay in transportation; governmental, regulatory or legal action; unusually severe weather conditions, earthquakes, floods, or other acts of God, or delays of a subcontractor of Carrier if such delay arises out of causes beyond the reasonable control of both Carrier and the subcontractor; or (ii) by acts or omissions of Buyer, including, but not limited to, Buyer’s failure to promptly comply with the terms of payment under the Agreement (“Force Majeure”). The date of delivery shall be extended for a period equal to the time lost by reason of any of Force Majeure.
  11. INDEMNIFICATION. To the maximum extent allowed by law, Buyer shall defend and indemnify Carrier and its employees, officers, directors, and agents against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorneys’ fees) that Carrier may incur or be obligated to pay as a result of: (i) Buyer’s negligence or Buyer’s use, ownership, maintenance, transfer, transportation or disposal of the Products; (ii) any infringement or alleged infringement of the industrial and intellectual property rights of others arising from Buyer’s plans, specifications (including Buyer’s trademarks and brand names) or production or use of the Products ordered by Buyer; (iii) Buyer’s violation or alleged violation of any federal, state, county or local laws or regulation, including without limitation, the laws and regulations governing transportation and product safety, labeling, packaging and labor practices; or (iv) Buyer’s breach of the Agreement.
  12. ENTIRE AGREEMENT. The Agreement comprises the complete and final agreement between Carrier and Buyer and supersedes all prior negotiations, proposals, correspondence, communications, discussions, representations, commitments, understandings or agreements between Carrier and Buyer, either written or oral, on its subject. No other agreement, quotation or acknowledgment in any way purporting to modify any of the terms of the Agreement is binding upon Carrier unless made in writing and signed by Carrier’s authorized agent. The Agreement may not be altered or modified except by written agreement of Carrier and Buyer. Any other representations or statements (whether oral or written) made by any person, including employees or other agents of Carrier, that are inconsistent with the Agreement must be disregarded by Buyer, do not constitute warranties and are not binding upon Carrier.
  13. SUCCESSORS AND ASSIGNS. The Agreement binds and inures to the benefit of Buyer and Carrier and their respective successors and permitted assigns. Buyer may not assign any interest in nor delegate any obligation under the Agreement, without Carrier’s prior written consent. Any assignment in violation of this clause shall be null and void.
  14. GOVERNING LAW. The validity, construction and performance of the Agreement is governed by, and must be construed in accordance with, the law of the state where Product is shipped (the “Governing State”), without regard to such state’s conflicts of law provisions.
  15. JURISDICTION AND VENUE. Buyer irrevocably submits and agrees to the jurisdiction of the state and federal courts of the Governing State. Any action, suit or proceeding related to, or in connection with, the Agreement and, to the extent permitted by applicable law, Buyer waives and agrees not to assert as a defense in any such action, suit or proceeding any claim: (i) that Buyer is not personally subject to the jurisdiction of the state and federal courts in the Governing State; (ii) that the venue of the action, suit or proceeding is improper; (iii) that the action, suit or proceeding is brought in an inconvenient forum; or (iv) the subject matter of the Agreement may not be enforced in or by the state or federal courts of the Governing State. Without prejudice to any other mode of service, Buyer consents to service of process relating to any such proceedings by personal or prepaid mailing (air mail if international) in registered or certified form a copy of the process to the Buyer at the address set forth in Section18.
  16. WAIIVER. The waiver by Carrier of any breach by Buyer of any provision of the Agreement may not be construed to be either a waiver of the provision itself as to subsequent application or any other provision of the Agreement. The failure of a party to enforce any of the provisions of the Sales Agreement or any Purchase Order will not waive such provisions, nor will any such failure prejudice or affect the other party’s right to enforce that provision in the future.
  17. SEVERABILITY. If any provision of the Agreement is held by a court of competent jurisdiction to be unenforceable, invalid, or contrary to law or public policy, the remaining provisions of the Agreement will not be affected, and shall remain in full force and effect.
  18. NOTICES. No notice or other communication under the Agreement is sufficient to affect any rights, remedies or obligations of either party unless the notice or communication is in writing and (as elected by the party giving the notice) is: (i) personally delivered; (ii) transmitted by facsimile (with a receipt acknowledgment); (iii) transmitted by electronic computer mail; (iv) transmitted by a recognized courier service; or (v) mailed (air mail if international) in registered or certified form, to the party to which notice or communication is being given at the following address: (a) if to Carrier, at its address designated on the face of the invoice - ATTN: LEGAL; and (b) if to Buyer, at its address designated on the face of the invoice. Notices or communications shall be deemed to have been duly given: (i) on the date of receipt if delivered personally; (ii) on the date of transmission if delivered by facsimile; (iii) on the date of transmission if transmitted by electronic computer mail; (iv) one day after pickup by courier if delivered by courier; or (v) five days after mailing if delivered by the postal service. Either party may change its address by providing notice to the other party.
    • NOTICES RELATED TO DEBT DISPUTE: Notwithstanding the foregoing, Buyer shall submit notices regarding a dispute involving payment and/or debt, to the following address: Holcim Treasury Department - DISPUTES, 6211 Ann Arbor Road, Dundee, MI 48131 ATTN: Gina Santacroce. DEBT AND/OR PAYMENT NOTICES SENT TO AN ADDRESS AND RECIPIENT OTHER THAN THE DESIGNATED DEBT DISPUTE OFFICE ARE NULL AND VOID.
  19. CONSTRUCTION. The headings of the Sections in these Terms are provided for convenience only and may not be considered in the interpretation of the Agreement. The parties agree that the provisions of the Agreement may not be construed in favor of or against either party by reason of the extent to which a party or its professional advisors participated in the preparation of the Agreement.
  20. SURVIVAL. The terms of the Agreement that by their nature are reasonably intended by the parties to survive the Agreement’s expiration or earlier termination, including, but not limited to, Sections 6, 7, 8, 11, 14, 15, and this Section 20 shall survive the expiration or termination of the Agreement.