CAPITALPLUS SUPPLY CHAIN PARTNERS, LLC
TERMS AND CONDITIONS
The following terms and conditions (“Terms and Conditions”) apply to the sale of Products pursuant to any supply application, purchase request, sales order, purchase order, or other written agreement between Buyer and CapitalPlus Supply Chain Partners, LLC.
Any order to purchase Products shall constitute, and the sale of Products is expressly conditioned on, Buyer’s assent to these Terms and Conditions.
(a) “Buyer” means the party to which Seller is providing Products under the Contract.
(b) “Buyer Default” means any failure by Buyer to make timely payment for Products in accordance with the terms of this Contract.
(c) “Contract” means these Terms and Conditions and any and all of the other Contract Documents into which these Terms and Conditions are incorporated.
(d) “Contract Documents” means (i) these Terms and Conditions, (ii) the supply chain application with respect to the sale of Products, (iii) the purchase request signed by Buyer with respect to the Products, (iv) the sales order signed by Buyer and accepted by Seller in writing for the sale of Products, (v) the purchase order signed by Buyer and accepted by Seller in writing for the sale of Products, and (vi) any other written agreement between the parties for the sale of Products
(e) “Contract Price” means the agreed price stated in the Contract for the sale of Products, including adjustments (if any) in accordance with the Contract.
(f) “Products” means the equipment, parts, materials, supplies, and other goods Seller has agreed to sell to Buyer under the Contract.
(g) “Project” and “Project Site” mean respectively the project and project location identified in the Contract.
(h) “Seller” means CapitalPlus Supply Chain Partners, LLC, a Tennessee limited liability company with principal offices located at 2510 Solway Road, Knoxville, Tennessee 37934.
2. REPRESENTATIONS OF BUYER
Buyer represents and warrants to the Seller that:
(a) the Products are entirely for incorporation into the Project;
(b) Buyer is the owner, general contractor, a first-tier subcontractor, or a material supplier of, on, or for the Project;
(c) The lien and security interest granted to Seller pursuant to this Contract are first priority security interests in the Products, and any other liens granted by Buyer with respect to the Products are subject to the provisions hereof.
These representations and warranties constitute a material inducement for the Seller to enter into the Contract.
3. DELIVERY AND SHIPPING TERMS
1. Seller shall deliver Products to Buyer F.O.B. shipping point.
2. Buyer shall pay all delivery costs and charges or pay Seller’s standard shipping charges plus handling. Partial deliveries are permitted.
3. Delivery times are approximate and are dependent upon prompt receipt by Seller of all information necessary to proceed without interruption. Seller may deliver Products in advance of the delivery schedule. Products will be delivered to the Project Site only.
4. If Products delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Buyer shall so notify Seller within three (3) days after receipt, and Buyer’s failure to timely notify Seller shall constitute a waiver thereof.
5. For the avoidance of doubt, title to Products and risk of loss shall pass to Buyer upon delivery in accordance with Section 3.1.
6. In no event will Seller be responsible for the assembly, installation, set-up and maintenance of the Products or the cost thereof.
4. CONTRACT PRICE AND PAYMENT TERMS
1. Buyer shall purchase the Products from Seller at the Contract Price. All Contract Prices are exclusive of shipping and handling charges, and all sales, use and excise taxes, and any other taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes. All such charges, costs and taxes which are the obligation of Buyer will be added to the invoice if prepaid by Seller.
2. Unless otherwise specified in the quotation, Seller’s quotation shall expire thirty (30) days from its date and may be modified or withdrawn by Seller before receipt of Buyer’s conforming acceptance.
3. Terms of payment are net cash due upon receipt of invoice.
4. Buyer shall pay interest on all late payments at the lesser of the rate of .065% per day or the highest rate permissible under applicable law, which interest shall begin to accrue on the 31st day after the date of the invoice. Buyer shall reimburse Seller for all costs incurred in collecting any unpaid amounts owing by Buyer to Seller, including without limitation reasonable attorneys’ fees and court costs.
5. Seller shall be entitled to suspend delivery of any undelivered Products if Buyer fails to pay any amounts when due hereunder for previously delivered Products. In the event Seller suspends delivery on account of Buyer’s failure to pay, Buyer agrees that Seller shall have no liability therefor.
6. Buyer shall not withhold payment of any amounts due and payable under the Contract by reason of setoff of any claim or dispute with Seller regardless of the basis of such claim for setoff. Buyer shall not withhold payment on the basis that it has not been paid by the Project owner or upper-tier contractor
2. CANCELLATION OF PURCHASE ORDER
2.1. Buyer may cancel a purchase order only with the prior written consent of Seller, which consent Seller may withhold in its sole discretion. All cancellations will be subject to payment of reasonable and proper cancellation charges.
2.2. Buyer may return Products only at its sole cost and only with the prior written authorization of Seller. No returns of special, custom, or made-to-order Products will be permitted.
3. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNIFICATION
3.1. Buyer acknowledges and agrees that Seller has absolutely no responsibility or liability in connection with the Products. The Products are not manufactured by Seller, and all Products are sold AS IS AND WITH ALL FAULTS. The only warranties are those provided by the manufacturer of the Products, if any, which shall be Buyer’s sole and exclusive warranties. SELLER MAKES NO WARRANTY WITH RESPECT TO THE PRODUCTS, AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COURSE OF PERFORMANCE, COURSE OF DEALING, AND USAGE OF TRADE. The Seller does not assume any obligation to assist the Buyer or any other person or entity with the prosecution of any warranty claims against the manufacturer or lower tier supplier.
3.2. Inasmuch as Seller is not the manufacturer of the Products, Buyer releases Seller of and from all claims and causes of action (a) regarding any alleged defect in the Products, including but not limited to claims and causes of action brought in contract, tort (including negligence or strict liability), or otherwise; (b) related to the inability or refusal of Seller’s suppliers to provide the Products; (c) related to any claims that may be asserted by any third persons that the Products infringe on their patent, copyright, trademark or other intellectual property rights; or (d) related to the failure of the Products to comply with any applicable laws and regulations.
3.3. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, DELAY, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
3.4. In no event shall Seller’s aggregate liability arising out of or related to this discrete Contract, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amount paid to Seller for the Products sold under this discrete Contract.
3.5. The foregoing limitations are a material basis for the parties’ bargain and reflect the bargained-for allocation of risks between Seller and Buyer, without which Seller would not have agreed to provide the Products at the price charged.
3.6. To the fullest extent allowed by law, Buyer shall indemnify and hold Seller harmless from all claims, actions, demands and costs, including but not limited to reasonable attorney’s fees, brought by a third party against Seller, which in any way relate to any of the Products or Buyer’s use thereof. Buyer shall also indemnify Seller for any and all losses incurred by Seller arising out of Seller’s performance of this Contract, including but not limited to reasonable attorney’s fees and all other expenses Seller incurs as a result of such losses.
4. GRANT OF SECURITY INTEREST; EXPRESS TRUST
4.1. To secure the timely payment in full of the purchase price of the Products, Buyer hereby assigns, grants and pledges to and for the benefit of Seller all of Buyer’s estate, right, title and interest in the Products, wherever located and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, including (a) all of Buyer’s estate, right, title and interest in, to and under all agreements, contracts and documents pursuant to which Buyer is a party for the resale or delivery of Products (collectively, the “Assigned Agreements”) and (b) all rights of Buyer to receive moneys due and to become due under or pursuant to the Assigned Agreements (all of the property described in this Section 7.1 being collectively referred to herein as the “Collateral”). The security interest granted under this provision constitutes a purchase money security interest (“PMSI”) in the Collateral pursuant to the Tennessee Uniform Commercial Code (T.C.A. §§ 47-9-101 et seq., the “Tennessee UCC”), or, if applicable, the Uniform Commercial Code as enacted by the state in which the Project is located. Where the Project Site is located.
4.2. Buyer acknowledges that any moneys received by Buyer on account of an Assigned Agreement are Collateral and proceeds of Collateral subject to Seller’s PMSI. It is the parties’ express intention that moneys received or to be received by Buyer on account of any Collateral or pursuant to an Assigned Agreement are property of Seller and shall be held by Buyer in trust for the benefit of Seller pending payment in accordance with the terms of this Contract to the fullest extent permitted by law, and Buyer agrees to so hold such funds for Seller’s benefit. For the avoidance of doubt, such moneys shall not constitute or be construed to be property of Buyer for purposes of any state, local or federal law or through application of any principle of law or equity.
4.3. Seller shall have the right to sign and file any and all documents in Buyer’s name and take any action it deems necessary to fully establish its security interest in the Collateral and the perfection thereof; however, the failure of Seller to file any such document, or to take any other steps necessary to preserve any of its rights against prior parties to the Collateral, shall not constitute a waiver of Seller’s right to such security interest.
4.4. Buyer shall promptly from time to time give, execute, deliver, file, record, authorize or obtain all such financing statements, continuation statements, notices, instruments, account control agreements, documents, agreements or consents or other papers as may be necessary or desirable in the reasonable judgment of Seller to create, preserve, perfect, or maintain the perfection of or validate the security interest granted pursuant to this Section 7 or to enable the Seller to exercise and enforce its rights hereunder with respect to the Collateral.
4.5. Buyer shall not file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Seller is not named as the sole secured party.
5. SELLER’S REMEDIES; ADEQUATE ASSURANCE
5.1. If a Buyer Default shall have occurred and be continuing, upon notice to Buyer, Seller may exercise all of the rights and remedies, with respect to the applicable Collateral, of a secured party under the Tennessee UCC (whether or not the Uniform Commercial Code is in effect in the jurisdiction where the rights and remedies are asserted) and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including the right, to the fullest extent permitted by law, to exercise all voting, consensual and other powers of ownership pertaining to the Collateral as if Seller were the sole and absolute owner thereof (and Buyer agrees to take all such action as may be appropriate to give effect to such right); and without limiting the foregoing: (a) Seller in its discretion may, in its name or in the name of Buyer or otherwise, demand, sue for, collect or receive any money or other property at any time payable or receivable on account of or in exchange for any of the Collateral, but shall be under no obligation to do so; (b) Seller may make any reasonable compromise or settlement deemed desirable with respect to any of the Collateral and may extend the time of payment, arrange for payment in installments, or otherwise modify the terms of, any of the Collateral; (c) Seller may apply any money or other property therein to payment of Buyer’s obligations to Seller under this Contract; and (d) Seller may, upon ten (10) business days’ prior written notice to Buyer of the time and the place, with respect to the Collateral or any part thereof that shall then be or thereafter come into the possession, custody or control of Seller, sell, lease, assign or otherwise dispose of all or any part of the Collateral, at such place or places as Seller deems best, and for cash or for credit or for future delivery (without thereby assuming any credit risk), at public or private sale, without demand of performance or notice of intention to effect any such disposition or of the time or place thereof (except for such notice as is required above or by applicable statute and cannot be waived), and Seller or anyone else (including Buyer and any current or former direct or indirect equity owner of the Buyer) may be the purchaser, lessee, assignee or recipient of any or all of the Collateral so disposed of at any public sale (or, to the extent permitted by law, at any private sale) and thereafter hold the same absolutely, free from any claim or right of whatsoever kind, including any right or equity of redemption (statutory or otherwise), of Buyer, any such demand, notice and right or equity being hereby expressly waived and released. Seller may, by providing prior written notice to Buyer, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the sale may be so adjourned.
5.2. Buyer agrees that to the extent Seller is required by applicable law or this Contract to give reasonable prior notice of any sale or other disposition of any Collateral, ten (10) business days’ notice shall be deemed to constitute reasonable prior notice.
5.3. Buyer recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, and applicable state securities laws, Seller may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the Collateral for their own account, for investment and not with a view to the distribution or resale thereof. Buyer acknowledges that any such private sales may be at prices and on terms less favorable to Seller than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that Seller shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to permit the issuer thereof to register it for public sale.
5.4. Seller shall incur no liability as a result of the sale of Collateral, or any part thereof, at any private sale pursuant to Section 8.1 conducted in a commercially reasonable manner. Buyer hereby waives any claims against Seller arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the obligations owing to Seller on account of the Collateral, even if Seller accepts the first reasonable offer received and does not offer the Collateral to more than one offeree.
5.5. Without limiting any rights or powers granted by this Contract to Seller, subject to Section 8.2, upon the occurrence and during the continuance of any Buyer Default, Seller is hereby appointed the attorney in fact of Buyer for the purpose of carrying out the provisions of this Section 8 and taking any action and executing any documents or instruments that Seller may, in good faith, deem necessary to accomplish the purposes of this Contract, to perfect, preserve the validity of, perfection and priority of, and enforce any lien granted by this Contract and, during the period that a Buyer Default has occurred and is continuing, to exercise its rights, remedies, powers and privileges under this Contract. This appointment as attorney-in-fact is irrevocable and coupled with an interest until this Contract terminates and any security interests created hereby are released. Without limiting the generality of the foregoing, Seller shall be entitled under this Section 8 to do any of the following if a Buyer Default has occurred and is continuing: (a) ask, demand, collect, sue for, recover, receive and give receipt and discharge for amounts due and to become due under and in respect of all or any part of the Collateral; (b) file any claims or take any action or proceeding in any court of law or equity that Seller may deem necessary or is reasonably required by Seller for the collection of all or any part of Buyer’s obligations in respect of the Collateral, including, without limitation, to file any claims or take any such action or proceeding against any counterparty to an Assigned Agreement and to assert any liens against any Project (including against its owner, general contractor or subcontractor or other agent) that have been or could be asserted on behalf of Buyer; and (c) execute, in connection with any sale or disposition of the Collateral pursuant to this Section 8, any endorsements, assignments, bills of sale or other instruments of conveyance or transfer with respect to all or any part of the Collateral; (d) pay or discharge taxes and security interests levied or placed on the Collateral; (e) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though Seller were the absolute owner thereof for all purposes; and (f) do, at Buyer’s expense, at any time, from time to time, all acts and things that Seller deems necessary in order to protect, preserve, or realize upon the Collateral and Seller’s security interests therein and to effect the intent of this Contract, all as fully and effectively as Buyer might do. So long as Seller shall be entitled under this Section 8.5 to make collections in respect of the Collateral, Seller shall have the right and power to receive, endorse and collect all checks made payable to the order of Buyer representing any dividend, payment or other distribution in respect of the Collateral or any part thereof and to give full discharge for the same. Buyer hereby ratifies all that such attorneys shall lawfully and in compliance with terms of this Contract do or cause to be done by virtue hereof.
5.6. Buyer agrees that, from time to time upon the written request of Seller, Buyer will execute and deliver such further documents and do such other acts and things as Seller may reasonably request in order to fully effect the purposes of this Contract. Seller shall forthwith release any lien covering any asset that has been disposed of in accordance with the provisions of this Contract.
5.7. The obligations of Buyer shall continue to be effective or automatically reinstated, as the case may be, if at any time payment of any of Buyer’s obligations to Seller under this Contract is rescinded or otherwise must be restored or returned by Seller upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Buyer or otherwise, all as though such payment had not been made.
5.8. Seller reserves the right by written notice to cancel any purchase order or require full or partial payment or adequate assurance of performance from Buyer without liability to Seller if Buyer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Seller reserves its right to suspend its performance until payment or adequate assurance of performance is received.
In addition to any remedies that may be provided under these Terms and Conditions, Seller may terminate this Contract with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Contract; (b) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. In addition, Seller may terminate this Contract for its convenience, that is, for any reason, or for no reason, with immediate effect upon written notice to Buyer. Notwithstanding Seller’s termination of this Contract, Buyer shall continue to be liable to Seller for all costs incurred by Seller up to the time of the termination.
7.1. Seller’s Remedies Cumulative. In addition to the remedies available under these Terms and Conditions, Seller may pursue any other remedies available to it in law and equity, and Seller’s pursuit of one or more remedy shall not preclude it from pursuing any other available remedy.
7.2. Amendment and Modification. The terms of this Contract may be amended or modified only by a writing which specifically states that it amends this Contract and which is signed by an authorized representative of each party.
7.3. Waiver. No waiver by Seller of any of the provisions of this Contract is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise or delay in exercising, and no course of dealing with respect to, any right, remedy, power or privilege arising from this Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
7.4. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller, its agents, or its suppliers, including but not limited to acts of God, flood, fire, earthquake, explosion, governmental orders, actions or directives, civil emergency, national emergency, war, weather, natural occurrence, invasion or hostilities (whether war is declared or not), acts or omissions of the Buyer, shortages or delay of materials or transportation facilities, terrorist threats or acts, riots or other civil unrest, emergency, revolution, insurrection, illness, epidemics, pandemics and other public health circumstances (including but not limited to the COVID-19 pandemic), lockouts, strikes or other labor disputes, restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, telecommunication breakdown, power outage, or when Seller is delayed for any cause beyond Seller’s control. For the avoidance of doubt, the pendency of any of the foregoing acts or circumstances at the time of execution of this Contract shall not constitute a waiver of this Section 10.4.
7.5. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of Seller; provided, however, that no assignment shall relieve Buyer of any of its obligations under this Contract. Any purported assignment or delegation in violation of this Section is null and void.
7.6. Successors and Assigns. This Contract shall be binding upon and inure to the benefit of the respective successors and permitted assigns of Buyer and Seller (provided that Buyer shall not assign or transfer its rights or obligations hereunder without the prior written consent of Seller in accordance with Section 10.5).
7.7. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Contract shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
7.8. Governing Law. All matters arising out of or relating to this Contract are governed by and construed in accordance with the internal laws of the State of Tennessee, without regard to conflicts of laws principles, except any actions initiated by Seller to enforce liens or bond claims shall be governed by and construed in accordance with the internal law of the state in which the Project is located.
7.9. Submission to Personal Jurisdiction; Venue; Statute of Limitations on Actions Brought by Buyer. Buyer expressly and irrevocably agrees that it is subject to the personal jurisdiction of the Circuit Court for Knox County, Tennessee (the “Court”) with respect to any legal suit, action or proceeding arising out of or relating to this Contract (an “Action”). Seller may bring any Action in the Court, and Buyer hereby waives any right of removal of such Action to federal district court. Any Action brought by Buyer shall be instituted solely and exclusively in the Court and must be commenced within one year after the cause of action accrues, and shall be barred if not commenced within one year.
7.10. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Contract or to such other address as may be designated in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Contract, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
7.11. Severability. If any term or provision of this Contract is determined to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Contract.
7.12. Survival. The provisions of these Terms and Conditions shall survive termination of this Contract and shall remain in full force and effect after Buyer’s payment of all of its obligations hereunder.
7.13. No Conflicting Terms. No Buyer form shall modify these Terms and Conditions, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of these Terms and Conditions. Seller expressly objects to any additional or different terms proposed by Buyer as condition to accepting Seller’s offer to sell Products. In the event of any conflict with the provisions of any of the other Contract Documents, the provisions of these Terms and Conditions shall take precedence and control.
7.14. Entire Agreement. These Terms and Conditions, along with any other Contact Document into which these Terms and Conditions are incorporated, constitute the entire agreement between Buyer and Seller relating to the subject matter hereof, and shall supersede all prior and contemporaneous discussions, understandings, and agreements, whether oral or written, related to the subject matter hereof.