In consideration of maintaining a commercial charge account for the company and/or individual referenced on the Application for Commercial Credit submitted herewith (“Buyer”), and for the provision of the personal guaranty below, Buyer, the person(s) signing the Personal Guaranty (“Guarantor”), and the GCC entity maintaining such charge account (“GCC”) agree to the following Sales Agreement (“Agreement”) regarding all purchases made by Buyer or anyone authorized by Buyer. The foregoing Application for Commercial Credit is incorporated herein and made part of this Agreement by reference.
1. Payment/Finance Charges. Payment for charges made on the account during a specific month is due in full on the last day of the month following purchase. If payment is submitted by mail, payments postmarked by the United States Post Office on or before the last day of the month will be considered timely paid. Interest at the rate of 18% per annum shall accrue on all accounts not paid when due. In addition, any amounts paid to GCC by Buyer may be applied by GCC to outstanding principal and interest and other charges as GCC deems appropriate. In addition, GCC has the right, if Buyer becomes delinquent in payments on its account, to hire a collection agency, or attorney, to collect on the account. Buyer shall be liable for all costs and expenses, including without limitation reasonable attorneys’ fees, incurred by GCC in the collection of any unpaid balance.
2. Sales Agreement Governs / Merger Clause. Except as otherwise provided by a written agreement signed by both Buyer and GCC, this Sales Agreement shall supersede the terms and conditions of Buyer’s order (including, without limitation, any statement that Buyer’s terms or conditions are to take precedence over any contrary provisions). This Agreement, together with the Application for Commercial Credit referenced above, contain the entire agreement between the parties hereto. Except as specifically stated herein with respect to the Guaranty, no prior or subsequent understanding, oral representation, agreement, terms, condition, or trade custom at variance with or supplemental to this Agreement shall be binding upon the parties hereto.
3. Security Interest/Mechanic Lien. Buyer hereby grants GCC a purchase money security interest in all merchandise, purchased by Buyer or anyone authorized by Buyer under this agreement, for as long as a balance remains outstanding with respect to such goods. In addition, Buyer acknowledges that if the goods or services charged to Buyer's account are used in connection with the alteration, repair or construction of any building, or for any other improvement of real estate, GCC has the right to obtain a mechanic's lien upon the real estate to secure payment.
4. Error or Discrepancies. If Buyer believes its monthly account statement contains an error, or Buyer needs more information about a transaction included on a monthly account statement, Buyer must write GCC, (on a separate sheet of paper) at the address shown on the top of the Application for Commercial Credit as soon as possible, but not later than ten (10) days after GCC issues its monthly account statement. Telephoning GCC will not preserve Buyer's rights. The letter is to contain all particulars about the error including the customer's name, address, phone number and the name of the person who prepared the notice of error. Absent such written notification from Buyer, monthly account statements shall be presumed correct.
5. Termination of Agreement. GCC reserves the right to terminate this Agreement at any time, with or without cause, and terminate the Buyer's right to make further purchases under this account. Buyer shall remain liable to GCC for all amounts owed at the time of termination. Buyer may terminate the Agreement, with or without cause, but only if Buyer has a $0 balance on Buyer’s account.
6. Specifications. All GCC products sold or shipped under this agreement are warranted to conform in quality to with the applicable product industry specification. EXCEPT AS EXPRESSLY SET FORTH IN THE PRECEDING SENTENCE, THERE ARE NO WARRANTIES, EITHER WRITTEN OR ORAL, EXPRESS OR IMPLIED OR STATUTORY, PERTAINING TO THE PRODUCT SOLD UNDER BUYER'S ACCOUNT. WITHOUT LIMITING THE FOREGOING, THERE ARE NO STATUTORY OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE MADE IN RESPECT OF ANY PRODUCT SOLD HEREUNDER. Having no control over the use of GCC products, GCC will not guarantee finished work, nor shall GCC be responsible for the condition of GCC products after delivery to Buyer. Any charges incident to inspections or tests made by, or on behalf of, Buyer to determine compliance with specification, shall be paid by Buyer.
7. Liability for Delay: GCC shall not be liable to Buyer for any delays in manufacturing, shipping, or delivering said GCC products, caused by earthquake, flood, tornado or other events of nature, fire, strikes, lockouts, labor disputes, plant failure or equipment and machinery breakdown, accidents, war, insurrection, riot, civil commotion, inability to secure rail cars, trailers, or trucks, fuel or other materials, governmental interference or regulation, delays in transportation, unavailability of GCC products for any reason, or market factors beyond GCC's control. If a shortage of the supply of GCC products occurs for any reason or if GCC products is unavailable for any reason, GCC shall have the right to apportion available GCC products among its customers, including Buyer, as GCC may determine.
8. Claims. ANY OR ALL OF BUYER’S CLAIMS FOR LOSS OR DAMAGE ARE LIMITED TO ACTUAL DAMAGES NOT TO EXCEED THE PURCHASE PRICE OF THE PRODUCT PURCHASED HEREIN. THIS SHALL BE BUYER’S EXCLUSIVE REMEDY. BUYER WAIVES ALL RIGHTS TO CLAIMS FOR DAMAGES AGAINST GCC IN EXCESS OF THOSE PROVIDED IN THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT LOSS, OR PUNITIVE DAMAGES FROM ANY DEFAULT, BREACH OR PERFORMANCE BY GCC UNDER THIS AGREEMENT OR BUYER'S USE OF GCC'S PRODUCT SOLD HEREIN. INCLUDED IN THIS WAIVER OF DAMAGES ARE, WITHOUT LIMITATION, BACK CHARGES, LABOR COSTS, COSTS OF REMOVAL, REPLACEMENT, TESTING OR INSTALLATION, LOSS OF EFFICIENCY, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF THE PRODUCTS SOLD HEREIN, DAMAGE TO ASSOCIATED PRODUCTS, LATENESS OR DELAYS IN DELIVERY, UNAVAILABILITY OF PRODUCTS, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICE, DOWNTIME, OR CLAIMS FROM BUYER’S CUSTOMERS OR OTHER PARTIES.
9. Resolving Disputes. Any disputes arising from this Agreement, or arising or any way relating to the subject matter of this Agreement, or to the business transactions between the parties to this Agreement (collectively, “Dispute” or “Disputes”), shall be resolved through, at the election of the first-filing claimant, either (i) litigation in state or federal court in Denver, Colorado, or (ii) mandatory arbitration conducted in Denver, Colorado, before a single, neutral, arbitrator, with the Judicial Arbiter Group, Inc. (“JAG”). Any counterclaim brought in any such litigation or arbitration shall be brought in the same action and in the same Colorado venue as elected by the first-filing claimant. Nothing in this Paragraph 9 shall bar a party from filing any court action necessary to perfect a mechanic’s lien or otherwise protect a party’s right to enforce a judgment obtained in arbitration.
10. Applicable Law, Personal Jurisdiction, Venue, Attorneys’ Fees. Any Disputes shall be governed by the laws of the State of Colorado without regard to choice-of-law principles. Each party hereto (a) consents to the nonexclusive personal jurisdiction of the state and federal courts of Colorado (including the personal jurisdiction of the arbitration process in Colorado over said party) in connection with any Dispute; and (b) waives any argument that the litigation or arbitration venue in Colorado is inconvenient. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE. The prevailing party in any Dispute shall be entitled to its reasonable attorneys’ fees, expenses, and costs incurred in such Dispute.
11. Title: Title to GCC products shall pass upon, as applicable, delivery to or pick-up by Buyer.
12. Personal Guaranty. The Guarantor(s) below personally and unconditionally guarantees the Buyer’s full compliance with all terms of this Agreement, including, without limitation, payment of all purchases ordered by Buyer, whether existing or hereafter made, whether on open account or evidenced by any instrument or documents. This guaranty shall be absolute, continuing and unlimited and shall continue until GCC receives written notice from Guarantor terminating this guaranty; provided, however, that such termination shall not affect Guarantor’s liability for obligations of Buyer incurred prior to such termination. This guaranty shall not be affected by any acceptance or any payment of the indebtedness, in whole or in part, or by extension of the time, manner, form or amount of payment. This is a guarantee of payment and not of collection, and the Guarantor waives notice of acceptance, nonpayment, and protest with respect to the obligation covered hereunder. The Guarantor acknowledges and agrees that Guarantor’s liability hereunder shall not be affected by any modification of this Agreement whether made with or without the prior or subsequent notice to or consent of the Guarantor.
For purposes of this Sales Agreement, “GCC” shall mean either GCC Rio Grande, Inc., GCC Permian, LLC., or GCC Dacotah, Inc., depending on which particular entity is providing the commercial charge account and selling the product to Buyer.
KEEP OUT OF THE REACH OF CHILDREN
CAUTION: Freshly mixed cement, mortar, concrete or grout may cause skin injury. Avoid contact with skin. Skin exposed to cement, mortar, concrete or other cement mixtures is to be washed immediately with water. If any cement or cement mixture gets into the eyes, rinse immediately with water and get immediate medical attention.