Terms And Conditions
THRIFTY SUPPLY COMPANY
TERMS AND CONDITIONS
1. Agreement. A purchaser (the “Buyer”) of goods from Thrifty Supply Company, identified in Paragraph 2 below, hereby agrees to the sales terms and conditions as hereinafter set forth (the “Terms”) for all goods purchased. The Terms shall be deemed to be incorporated into all documents evidencing the purchase between the Buyer and Thrifty Supply, including, without limitation, all acknowledgements, acceptances, shipping or delivery tickets, invoices or statements (referred to herein as the “Documents” or individually “a Document”) referencing the Buyer’s purchase of goods or services. Such Documents with their clauses printed thereon along with the Terms contained herein in Paragraphs 1 through 23 constitute the “Sales Agreement” between Thrifty Supply and the Buyer. All clauses contained in these Terms take precedence over any language in the Buyer’s purchase order(s) or other document(s), if any, to the contrary. THE BUYER IS NOTIFIED THAT THE DOCUMENT(S) PREPARED IN THE COURSE OF PURCHASE, DELIVERY AND BILLING SPECIFICALLY INCORPORE THESE TERMS BY REFERENCE.
2. Parties. “Thrifty Supply" means and is that group of companies operating under the trade name Thrifty Supply Company. The companies include: I.M. Distributing Company, Inc., I.M. Distributing Company of Aloha, Inc., Thrifty Supply Co. of Auburn, Inc., Thrifty Supply Co. of Bellevue, Inc., Thrifty Supply Co. of Seattle, Inc., Thrifty Supply Co. of Everett, Inc., Thrifty Supply Co. of Yakima, Inc., Thrifty Supply Co. of Spokane, Inc., Thrifty Supply of Co. of Tacoma, Inc., Thrifty Supply Co. of Yakima, Inc., I.M. Distributing Corporation, and Thrifty Management corporation. “Buyer” is a purchaser of goods or services from Thrifty Supply for whom a sales document(s) has been generated.
3. Delivery. Unless otherwise specified, all goods and services are sold F.O.B. Thrifty Supply’s location or the manufacturer's plant. Delivery of goods to a common carrier shall constitute delivery to the Buyer and all risk of loss or damage in transit shall be borne by the Buyer. Any delivery of goods and services by Thrifty Supply is subject to a charge for shipping, handling or any sales or use taxes.
4. Payment. All statements are posted on the 25th of the month (the “Run Date”). Unless otherwise specified in a separate Document between the Buyer and Thrifty Supply regarding a particular purchase, the Buyer may deduct two (2) percent provided payment is received by Thrifty Supply on or before the 10th of the month following the Run Date (no deduction may be taken for past due amounts); otherwise payment without discount is due thirty (30) days following the Run Date. The Buyer promises to pay all statements when due. The Buyer further agrees to pay interest on past due balances at 18% per annum unless such amount is not allowed by law; in such event, the highest legal rate allowed by local law shall be added to the past due balance(s). Time is the essence of this Sales Agreement.
5. Accuracy Protest Required. The Buyer agrees that invoices and monthly statements are accurate in all respects and waives any right to later object to the amounts charged, unless the Buyer notifies Thrifty Supply in writing within ten (10) days of receipt of the invoice or statement in which the charges are first billed. Payments received toward an invoice or statement may be applied to the unpaid balance in such manner and in such order as Thrifty Supply deems appropriate in its sole and absolute discretion.
6. Expenses of Collection. The Buyer agrees to pay upon demand all costs and expenses incurred by Thrifty Supply’s, including, but not limited to, attorneys' fees, costs allowed by statute and other legal and other expenses, incurred by Thrifty Supply in connection with collection of any amounts owed to it, including all attorneys' fees and other expenses relating to defenses, affirmative defenses and/or counterclaims that the Buyer may raise in any collection action initiated or pursued by Thrifty Supply, which must be resolved prior to collection by Thrifty Supply of any amounts owed or enforcement of any terms contained herein or in any Document and/or a related guarantee. Thrifty Supply may pay a third party to enforce this agreement, and the Buyer shall pay all costs and expenses charged by that third party for enforcement. Such costs and expenses include, but are not limited to, services of collection agencies or similar entities, all attorneys' fees and legal expenses billed by a law firm or attorney, or persons hired by a law firm or attorney, and their billings, whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (and including efforts to modify or vacate any automatic stay or injunction), appeals, and any post-judgment collection services.
7. Change in Ownership of The Buyer. The Buyer agrees to notify Thrifty Supply, in writing, prior to any substantial change of ownership and shall be liable for purchases of any buyer of the business should said notification not be given, notwithstanding any liability of the purchaser.
8. Inspection Required. The Buyer agrees if the products sold hereunder are defective at the time of delivery in material and workmanship, the Buyer must give written notice of the defective goods to Thrifty Supply no later than forty-eight (48) hours after receipt of the shipment by the Buyer. Thereafter, Thrifty Supply may inspect the claimed defective products either in the field or request their return for inspection. Following inspection, Thrifty Supply will, at its sole option, repair, replace, give equitable credit or a refund for such products as are reasonably determined by Thrifty Supply to be defective; provided that, if the products have been altered or repaired by anyone except Thrifty Supply’s authorized representatives, are operated contrary to Thrifty Supply’s or the manufacturer’s instructions or subjected to misuse, operator negligence, malfeasance or accident, then any obligation of Thrifty Supply under this paragraph is null and void. The Buyer agrees the sole and exclusive remedy for nonconforming goods is repair, replacement, equitable credit or refund at Thrifty Supply’s sole and exclusive option.
9. Warranties Provided By Manufacturer Only. Thrifty Supply warrants the goods sold are the ones described in the Document(s). Except for the warranty contained in the preceding sentence, all goods sold are subject to the following: THRIFTY SUPPLY PROVIDES no warrantY(IES) OR GUARANTEE(S) ON GOODS NOT MANUFACTURED by IT; GOODS NOT MANUFACTURED BY THRIFTY SUPPLY carry only the warrantY(ies) of the manufacturer. THE BUYER AGREES THRIFTY SUPPLY HAS NEITHER MADE OTHER PROMISES NOR GRANTED ANY EXPRESS WARRANTY(IES) REGARDING THE GOODS SOLD. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF THOSE CARRIED IN THE THRIFTY SUPPLY DOCUMENTATION, WHICH ARE PROVIDED BY THE MANU-FACTURER. THE BUYER AGREES THAT ALL OTHER IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED AND ARE SPECIFICALLY EXCLUDED FROM THIS SALES AGREEMENT.
10. No Incidental or Consequential Damages. The Buyer agrees that regardless of any other provision(s) of THE BUYER’S PURCHASE ORDER(S) OR thE Sales Agreement, in no event whatsoever, shall THRIFTY SUPPLY be liable for any special, incidental, indirect, or consequential damages, or for any damages of a similar nature arising out of or in connection with thE Sales Agreement regardless of whether any such liability shall be claimed in contract, equity, tort (including negligence), or otherwise. By way of example of the foregoing limitation of liability, but without limiting in any manner its scope or application, Thrifty Supply shall not be liable for all or any part of any of the following, no matter how claimed: loss of profit or revenue, cost of capital or financing, loss or reduction of use or value of any facilities, or increased costs of operations or maintenance. The limitation of liability contained in this paragraph shall be effective without regard to Thrifty Supply’s performance or failure to perform or delay in the performance under any other term or condition of this Sales Agreement, including those contained in any warranty clause. The Buyer agrees that the remedies set forth herein are exclusive.
11. Limitation of Damages. The Buyer agrees that Thrifty Supply’s liability with respect to the Sales Agreement, any warranty, or the manufacture, delivery, installation, repair, or use of any goods under the Sales Agreement shall not exceed the stated selling price of the goods upon which any such liability is based.
12. Restocking Charge Applicable. Any goods accepted for return are subject to Thrifty Supply’s then applicable restocking charge.
13. Effects of Delay, Cancellation, or Upgrade. Thrifty Supply shall not be liable for any delay in the manufacture or delivery of goods sold due to a cause(s) beyond its control. If the performance of the Sales Agreement by Thrifty Supply becomes more burdensome by reason of a delay or a price increase by the manufacturer(s), Thrifty Supply may increase the price of goods sold hereunder to compensate it for the extra burden or for any price increase. Thrifty Supply may substitute goods of a higher quality from the same manufacturer, at its option; nevertheless, the sales price for an item(s) upgraded shall not be increased to the Buyer. In such case, the Buyer may not object to the substitution and the sales agreement shall proceed as if the Buyer had specified the higher quality good(s) in its initial order. If the Buyer refuses to agree to any adjustment made under the terms of this paragraph, Thrifty Supply may cancel the Sales Agreement without penalty. If a delay in delivery continues for ninety (90) days or more, then either party may, by written notice to the other, cancel the sale except as to goods specifically acquired by Thrifty Supply for the sale, or which are in the process of manufacture at the time such notice is received and for which Thrifty Supply is not permitted by the manufacturer or its vendor to cancel. The Buyer shall bear all costs for any cancellation it makes that is not in conformity with the provisions of this paragraph.
14. Cancellation by Mutual Agreement Only. Except as provided in Paragraph 13, the Buyer may not cancel an order(s), or any portion thereof, except by mutual written consent. Notice is given that Thrifty Supply will not consent, and is granted an unconditional option to refrain from consenting, to cancellation if manufacturing or processing of the Buyer's goods has commenced, special goods have been purchased for the order, or the order has been, or is in the process of being, assembled for delivery.
15. No Waiver. Thrifty Supply’s failure to insist upon strict performance of any provision of this Sales Agreement shall not be deemed to be a waiver of its rights or remedies; neither will Thrifty Supply failure to insist be deemed a waiver of any subsequent default by the Buyer in the performance of, or compliance with any of the terms of this or any other Document or agreement.
16. Effect of Invalid Term. If any term or clause set forth contained herein or in any Document is determined to be invalid, the invalid term shall be considered deleted from the Sales Agreement but such deletion shall not invalidate any other term(s). If necessary to give effect to this Agreement, the parties direct that a court, or other trier-of-fact, shall provide an interpretation, or provide a substitute valid clause, that gives effect to this Sales Agreement without giving an advantage to either the Buyer or Thrifty Supply.
17. Complete Agreement. These Terms constitute the complete and exclusive statement of all terms of the Sales Agreement between the Buyer and Thrifty Supply with respect to the sales of goods indentified in the Documents. Any prior oral statements or representations regarding the sales of the goods are superseded. No waiver, consent, modification, amendment, or change of these terms (hereinafter “modification”) or the Sales Agreement shall be binding on either party unless in writing; such modification must reference the order and identify the goods purchased by date and title, and must be executed by both Thrifty Supply and the Buyer. In case of a conflict between the terms and conditions on the face of a Document or the Buyer’s purchase order(s), the terms and conditions contained herein or in that Document shall control.
18. The Buyer’s Change in Financial Condition. Thrifty reserves the right to revoke any credit extended if the Buyer fails to pay for any shipment(s) when due. If in Thrifty Supply’s sole and absolute opinion there is a material adverse change in the Buyer's financial condition, Thrifty Supply shall have the right to suspend further shipments until receipt of adequate assurance of the Buyer's ability to pay. The Buyer's refusal to furnish such assurance within a reasonable time or failure of the Buyer to perform obligations under this Sales Agreement or any other existing agreement with Thrifty Supply shall entitle Thrifty Supply to cancel this Sales Agreement or any other contract or so much of it as may remain unexecuted without notice, all without waiving any claim for damage or for any other remedy Thrifty Supply may be entitled to receive. If at any time the Buyer's account becomes delinquent, the Buyer authorizes Thrifty Supply to charge the outstanding balance to the credit card account(s) listed in the Buyer's Credit Application.
19. Venue and Jurisdiction. Venue and jurisdiction of any suit or legal action shall be in the courts located in Seattle, King County, Washington. This Agreement shall be construed and enforced in accordance with the laws of the State of Washington. If the Buyer shall proceed in any venue other than Seattle, King County, Washington, such proceeding shall be removed or transferred upon notice given, and motion made, by Thrifty Supply; the Buyer waives any right it may have to object to such transfer or removal. In the event a lawsuit is commenced, the Buyer waives the right to jury trial on all issues, including, but not limited to, claims asserted against Thrifty Supply, including, without limitation, issues relating to nonpayment of monies owed to Thrifty, defenses, affirmative defenses, and/or counterclaims.
20. Contractual Limitation of Action. The Buyer shall not commence, and is contractually prohibited from commencing, any litigation or other action against Thrifty Supply more than one (1) year after accrual of the cause of action. This limitation of action is an essential part of this agreement.
21. Terms Herein Control. No term(s) or condition(s) of any sales agreement, purchase order or other document containing terms different from the terms contained herein will become part of the Sales Agreement between Thrifty Supply and the Buyer, unless specifically approved, and executed, in writing by Thrifty Supply. Such a writing must specifically refer to the order and goods purchased by date and title.
22. No Oral Agreements. The parties agree that oral agreements or oral commitments to extend credit, or to forebear from enforcing repayment of a debt are not to be enforced. Furthermore, the Buyer agrees that Thrifty Supply has not made any oral promises and that no statements by Thrifty Supply personnel have been, neither shall they be, interpreted to be in contravention of this paragraph.
23. Titles. Titles to the paragraphs herein are for reference only. Titles do not alter or amend the paragraph of which they are a part.
TERMS AND CONDITIONS OF PURCHASE
UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, ALL PURCHASES BY THE “THRIFTY SUPPLY GROUP OF COMPANIES” (“Buyer”) EVIDENCED BY A THRIFTY SUPPLY GROUP OF COMPANIES PURCHASE ORDER ARE EXPRESSLY SUBJECT TO AND INCORPORATE THE FOLLOWING TERMS AND CONDITIONS (“Terms”):
1. Offer and Acceptance.
Buyer’s Purchase Order is only an offer to enter into a contract and to be valid must be accepted in writing by Seller. If for any reason Seller should fail to accept in writing, any conduct hereunder by Seller (including, but not limited to, (a) Seller's commencement of performance pursuant to Buyer’s Purchase Order, (b) Seller's delivery of any of the products ordered, or (c) Seller's acceptance of any payment by Buyer) which recognizes the existence of a contract pertaining to the subject matter hereof shall constitute acceptance by Seller of Buyer’s purchase order, all of its terms and conditions including these Terms. Any terms proposed in Seller's acceptance of Buyer's offer which add to, vary from, or conflict with the terms herein are hereby objected to. Any such proposed terms shall be void and the terms herein shall constitute the complete and exclusive statement of the terms and conditions of the contract between the parties and may hereafter be modified only by written instrument executed by the authorized representatives of both parties. If Buyer’s purchase order has been issued by Buyer in response to a specifically identifiable offer from Seller, and if any of the terms herein are additional to or different from any terms of such offer, then the issuance of Buyer’s purchase order by Buyer shall constitute an acceptance of such offer, subject to the express conditions that the Seller assents to such additional and different terms herein and acknowledges that Buyer’s Purchase Order constitutes the entire agreement between Buyer and Seller with respect to the subject matter hereof and the subject matter of such offer. Seller shall be deemed to have so assented and acknowledged unless Seller notifies Buyer to the contrary in writing within ten (10) calendar days of receipt of Buyer’s Purchase Order. Title to the goods shall pass to Buyer upon signature of delivery by an authorized agent of Buyer at the designated shipping destination.
All prices shall be as stated in Buyer’s Purchase Order and are firm and not subject to escalation. Seller represents and warrants that the prices set forth in Buyer’s Purchase Order are at least as low as those currently being quoted by Seller to commercial users for the same products, in like quantities, under similar circumstances. If no price is stated for any product, the price for that product shall be the lowest price currently quoted or charged by Seller for that product, but in no event higher than the price most recently quoted or charged to Buyer by Seller for that product. The Buyer’s price for the product shall be F.O.B. Buyer’s shipping destination, with Seller’s invoice specifically setting forth additional freight and insurance costs, if any, which shall be a pricing item only to be paid by Buyer, unless otherwise agreed in writing. If freight and insurance is in addition to the price of the goods, then Buyer shall have the right to designate the shipping carrier. For purposes of clarity, the following terms shall have the following meaning: “Prepay and Charge” shall mean that the Seller pays the freight and includes the freight costs on the Seller’s invoice as an additional cost item. “Freight Collect” shall mean the charges for transportation of the goods to Buyer’s shipping destination will be invoiced to Buyer by the freight carrier and not included in the Seller’s invoice to Buyer for the goods purchased. “Prepaid” shall mean the Seller pays for the costs of shipping to the Buyer’s shipping destination and the said costs are included in the quoted price of the goods invoiced to Buyer.
Unless otherwise provided in Buyer’s Purchase Order, the price includes, and Seller shall pay, all excise, sales, use, transfer, or other taxes, federal, state, and local, in connection with the sale or delivery of the products to Buyer.
4. Terms of Payment.
Unless Buyer has otherwise agreed in writing, payment terms shall be net thirty (30) days from the later of the date Buyer receive Seller's invoice or the date on which Buyer accept the products.
Unless Buyer has otherwise agreed in writing, Seller must deliver the exact quantities specified. Buyer reserves the right to reject incomplete deliveries and to return at Seller's risk and expense excess quantities delivered. Buyer reserves the right to cancel any such order in which Seller makes a partial shipment.
6. Packaging and Shipment.
All products shall be packaged, marked, and otherwise prepared for shipment by Seller in suitable containers in accordance with sound commercial practices. Seller shall mark on containers all necessary handling, loading, and shipping instructions. An itemized packing list shall be included with each shipment. Seller shall pay all costs of packaging, transportation, and insurance in delivering the products to the designated carrier for shipment to Buyer’s designated shipment destination. Seller shall be liable for all damage to any goods, materials, or equipment resulting from improper packing, and expenses resulting to the Buyer therefrom shall be payable by the Seller on demand and the Buyer may deduct such expenses from the amount due the Seller under the contract.
Our use of and marketing schedules for the product are established in part in reliance upon the delivery information specified in Buyer’s Purchase Order. Time and place of delivery are, therefore, of the essence in the performance of Buyer’s Purchase Order. Any provision for delivery in installments shall not be construed as making the obligations of Seller severable. If delivery cannot be made at the specified time and place, Seller shall promptly notify Buyer of the earliest possible date for conforming delivery. Notwithstanding such notice, and unless otherwise agreed by Buyer in writing, Seller's failure to effect conforming delivery shall entitle Buyer to revoke any acceptance, to cancel this order without liability to Seller, to receive a full refund of any amounts paid, to purchase substitute products elsewhere, to return at Seller's risk and expense all or any part of a nonconforming delivery, and to hold Seller accountable for any loss or additional costs incurred. Our receipt or acceptance of all or part of a nonconforming delivery shall not constitute a waiver of any claim, right, or remedy Buyer has under Buyer’s Purchase Order or under applicable law.
8. Title and Risk of Loss.
Title to and risk of loss for products purchased which conform to Buyer’s Purchase Order shall pass to Buyer upon signature of delivery by an authorized agent of Buyer at the designated shipping destination. Title to and risk of loss for nonconforming products and for all property, incidental to the transaction, provided to Buyer by Seller shall remain with Seller.
9. Inspection and Rejection.
The product is subject to Buyer's inspection and approval within a reasonable time after delivery, notwithstanding any prior payment. All products shall be received subject to our inspection, testing, approval, and acceptance at our premises within a reasonable time from receipt of the Products, notwithstanding any inspection or testing at Seller's premises or any prior payment for such products. Products rejected by Buyer as not conforming to Buyer’s Purchase Order may be returned to Seller at Seller's risk and expense and shall not be replaced by Seller without our written authorization, any provision of the Uniform Commercial Code notwithstanding, with those said provisions being hereby superseded.
In addition to any other express or implied warranty, Seller expressly warrants that all goods or services furnished under this agreement shall conform to all specifications and appropriate standards, will be new, and will be free from defects in material or workmanship. Seller warrants that all such goods or services will conform to any statements made on the containers or labels or advertisements for such goods or services, and that any goods will be adequately contained, packaged, marked, and labeled. Seller warrants that all goods or services furnished hereunder will be merchantable, and will be safe and appropriate for the purpose for which goods or services of that kind are normally used. If Seller knows or has reason to know the particular purpose for which Buyer intends to use the goods or services, Seller warrants that such goods or services will be fit for such particular purpose and will be marketable as represented by Seller. Seller warrants that goods or services furnished will conform in all respects to samples. Inspection, test, acceptance or use of the goods or services furnished hereunder shall not affect the Seller's obligation under this warranty, and such warranties shall survive inspection, test, acceptance and use. Seller's warranty shall run to Buyer, its successors, assigns and customers, and users of products sold by Buyer. Seller agrees to replace or correct defects of any goods or services not conforming to the foregoing warranty promptly, without expense to Buyer, when notified of such nonconformity by Buyer, provided Buyer elects to provide Seller with the opportunity to do so. In the event of failure of Seller to correct defects in or replace nonconforming goods or services promptly, Buyer, after reasonable notice to Seller, may make such corrections or replace such goods and services and charge Seller for the cost incurred by Buyer in doing so.
Buyer may, at any time and from time to time, by written notice to Seller, make changes in specifications, designs, drawings, method of packing or shipment, quantity ordered, destinations and delivery schedules and Seller shall immediately comply therewith. If any such change causes a material increase or decrease in Seller's cost or the time for performance, an equitable adjustment shall be made to the price or delivery schedule, or both. Any claim by Seller for adjustment under this Section 11 shall be deemed waived unless made by Seller in writing within ten (10) calendar days after receipt of written notice by Buyer of the change. No change, modification, or revision of Buyer’s Purchase Order shall be binding upon Buyer unless in writing and signed by Buyer’s duly authorized representative. Nothing contained in this Section 11 shall excuse Seller from diligently proceeding with the order as changed.
12. Compliance with Laws.
(a) Seller warrants that all goods supplied hereunder will have been produced in compliance with and Seller agrees to be bound by all applicable federal, state and local laws, orders, rules and regulations.
(b) Seller shall obtain all permits or licenses required in connection with the manufacture, sale, shipment, and installation of the products ordered hereby.
(c) If in connection with the products to be delivered under Buyer’s Purchase Order, Seller is required to comply with the Occupational Safety and Health Act's hazardous communications standard (48 Fed. Reg. 53280 (1983)), Seller agrees to provide you with copies of the applicable Material Safety Data Sheets at the time of delivery to you of the products ordered hereunder which require such compliance, and any updates of such sheets required to be delivered by Seller to you under such laws and regulations.
13. Government Contract Provisions.
Purchase Orders which specify a government contract number or otherwise indicate that the materials purchased are intended for use under government contracts or subcontracts shall be subject to and deemed to incorporate all clauses and provisions which are contained in such contracts and subcontracts which are applicable to Seller.
(a) Without prejudice to any rights or remedies, Buyer may cancel this agreement in whole or in part if the product is (i) defective, or (ii) the product is shipped with incomplete quantities, or (iii) is not delivered to Buyer as scheduled, or (iv) if Seller makes an assignment for the benefit of creditors, or if a receiver for Seller is appointed, or if any petition for bankruptcy or corporate reorganization under the Bankruptcy Act is filed by or against Seller, or (v) if Seller fails to comply with any of the terms or conditions of this agreement. If a delivery date is not specified, Buyer may cancel this agreement in whole or in part if Seller fails to deliver the product within thirty (30) days from the date of this order.
(b) All of Seller's obligations set forth in Buyer’s Purchase Order shall survive the cancellation, termination, or completion of this Purchase Order.
Seller shall not delegate or subcontract any duties or assign any rights or claims under Buyer’s Purchase Order without our prior written consent, and any such attempted delegation, subcontract, or assignment shall be void.
This order and any payments to be made hereunder may not be assigned or transferred without prior written approval by Buyer. No invoices may be rendered by other than the named Seller without the written permission of Buyer. All claims for moneys due or to become due from the Buyer shall be subject to deduction by the Buyer for any setoff or counterclaim arising out of Buyer’s Purchase Order or any other purchase orders with the Seller, whether such setoff or counterclaim arose before or after such assignment by the Seller.
16. Governing Law.
Buyer’s Purchase Order and the rights and obligations of the parties hereunder shall be governed by and interpreted, construed, and enforced in accordance with the laws of the State of Washington with venue for the determination of any such enforcement action being located in King County Washington.
Seller represents and warrants that it has been duly authorized to execute, deliver, and perform Buyer’s Purchase Order, and the person signing on Seller's behalf has the power and authority to do so.
Seller shall indemnify and hold Buyer harmless against any and all claims, losses, liabilities, damages, costs, or expenses, including attorneys' fees and court costs, and shall defend all actions and proceedings at its sole expense, resulting from the breach or alleged breach of any representation, warranty, or agreement made by Seller in Buyer’s Purchase Order, including, without limitation, Seller's obligations to deliver products pursuant to Buyer’s Purchase Order and Seller's representations, warranties, and agreements contained in Buyer’s Purchase Order.
Seller shall maintain with an insurance company or companies Comprehensive General Liability Insurance (including liability hereunder and products liability coverage) in the minimum amount of $5 million. At our request, a certificate of such insurance shall be filed with Buyer and shall provide for ten (10) days' prior written notice to Buyer of cancellation or material change. Liability insurance limits shall not be construed to limit our right of indemnity hereunder.
20. Severability; Remedies; Waiver.
In the event that any one or more provisions or sub-provisions contained in Buyer’s Purchase Order shall be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The remedies contained herein are cumulative and in addition to any other remedies at law or equity. Our failure to enforce, or waiver of a breach of, any provision of Buyer’s Purchase Order shall not constitute a waiver of any other breach or of such provision.
Any notice or communication required or permitted under Buyer’s Purchase Order shall be in writing and shall be deemed received when personally delivered or three (3) days after being sent via first-class mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other.
22. Entire Agreement.
The Buyer’s Purchase Order, including these Terms, constitute the complete and exclusive statement of the contract between Buyer and Seller with respect to our purchase of the products. No waiver, consent, modification, amendment, or change of the terms of Buyer’s Purchase Order shall be binding unless in writing and signed by Buyer and Seller. In case of a conflict between the terms and conditions on the face of Buyer’s Purchase Order and the terms and conditions contained herein, the terms and conditions on the face of Buyer’s Purchase Order shall control.
23. Additional or Inconsistent Terms.
Any term or condition set forth in any Purchase Order provided to Buyer by Seller which is in any way different from, inconsistent with or in addition to the terms and conditions set forth herein will not become a part of Buyer’s Purchase Order or be binding upon Buyer. If Seller objects to any term or condition set forth herein, this objection must be in writing and received by Buyer at Buyer’s address prior to Seller's delivery and any inconsistent terms so submitted in said written objection by Seller shall not become a part of Buyer’s Purchase Order. Buyer’s failure to object to terms contained in any communication from Seller will not be a waiver of the terms set forth herein. Seller shall not condition any delivery upon the abrogation or modification of any of the terms and conditions included in Buyer’s Purchase Order.
24. Limitation On Buyer's Liability -- Statute Of Limitations.
In no event shall Buyer be liable for Seller’s anticipated profits or for Seller’s incidental or consequential damages. Buyer's liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this agreement or from the performance or breach thereof shall in no case exceed the price allocable to the goods or services or unit thereof, which gives rise to the claim. Buyer shall not be liable for penalties of any description. Any action resulting from any breach on the part of Buyer as to the goods or services delivered hereunder must be commenced within one (1) year after the cause of action has accrued.
25. Force Majeure.
Buyer may delay delivery or acceptance occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Buyer and shall deliver them when the cause affecting the delay has been removed. Buyer shall be responsible only for Seller's direct additional costs in holding the goods or delaying performance of this agreement at Buyer's request. Causes beyond Buyer’s control shall include government action or failure of the government to act where such action is required, strike or other labor trouble, fire, or unusually severe weather.
The term “Thrifty Supply Group of Companies” or Thrifty is a collective term identifying a group of companies doing business as “I.M/Thrifty”, or “Thrifty Supply Group of Companies” or Thrifty and includes any or all of the following entities: I.M. Distributing Company, Inc., I.M. Distributing Company of Aloha, Inc., Thrifty Supply Co. of Bellevue, Inc., Thrifty Supply Co. of Seattle, Inc., Thrifty Supply Co. of Everett, Inc., Thrifty Supply Co. of Yakima, Inc., Thrifty Supply Co. of Spokane, Inc., Thrifty Supply of Co. of Tacoma, Inc., I.M. Distributing Corporation, and Thrifty Management corporation.
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