Terms of Use

1. GENERAL: Each sale by Express Pipe & Supply Co., LLC or its affiliates or predecessors (including but not limited to Express Pipe & Supply Co., Inc.) (collectively "Seller") shall be subject to these Terms and Conditions. All sales are expressly conditioned upon Buyer's assent to Seller's terms. Any additional or different terms or conditions proposed by Buyer or contained in Buyer's order are hereby rejected and not a part of this agreement. Any Amendment, waiver, modification or deletion of any of Seller's terms shall be in writing and signed by a corporate officer of Seller. Seller reserves the right to modify these terms, in Seller's sole discretion, upon written notice to Buyer. Seller's waiver of any breach shall not be considered a waiver of any other or future breach or of Seller's other rights. The validity, performance, interpretation and enforcement of this instrument shall be governed by the laws of California

2. PAYMENT: Payment is due upon receipt of merchandise. Credit terms are AS AGREED pursuant to Buyer's credit application agreement with Seller. Buyer's receipt of payment from Buyer's customer, if any, is not a condition precedent to Buyer's obligation to make payment to Seller. In no case shall retention be withheld from Seller. Buyer agrees to pay a service charge on all past due amounts of one and one-half percent (1 ½%) per month [eighteen percent (18%) per annum].

3. FINANCIAL CONDITION: By ordering merchandise from Seller, Buyer represents to Seller that Buyer is solvent and has the financial capacity to pay all amounts due Seller in accordance with these terms. If, in Seller's sole discretion, Buyer's financial condition at the time of shipment does not justify the specified payment terms, Seller reserves the right to require payment or other adequate assurance of performance before shipment.

4. CHANGES IN BUYER'S STATUS: Buyer will notify Seller immediately by Certified Mail of any changes in the Buyer's legal entity, legal name, legal status, license status, material financial status (including but not limited to bankruptcy or an assignment for the benefit of creditors), principal place of business, principals, and/or owners, as well as when any employees are no longer authorized by Buyer to purchase on Buyer's account.

5. SECURITY INTEREST: Buyer grants Seller a security interest in all merchandise sold by Seller until Buyer has made full payment to Seller. Buyer authorizes Seller to file a financing statement or such other documents necessary to perfect Seller's security interest. Seller's security interest shall entitle Seller to all rights and remedies afforded a secured party under California law.

6. SHIPMENT: Seller shall use reasonable commercial efforts to ship in accordance with Buyer's shipping instructions and schedule. Seller shall not be bound by any specific shipping instructions or delivery date. All shipping dates provided in advance of shipment are approximate and do not represent fixed or guaranteed dates. Seller is not liable for any damages attributable to late delivery or for claims of delay. In the absence of shipping instructions, or if Buyer's shipping instructions are deemed impractical, Seller may elect to ship by any commercially reasonable method.

7. CLAIMS: Claims or adjustments for damage or shortages must be made, in writing, within three (3) days of Buyer's receipt of Seller's merchandise. Failure to provide Seller with written notice shall constitute conclusive evidence that Buyer has accepted the merchandise.

8. RETURNS: All sales are final and merchandise may not be returned without Seller's prior written approval. If Buyer requests permission to return merchandise, the merchandise must be in its original packaging, undamaged and suitable for resale. Buyer must also provide Seller with Seller's original invoice number. All returned merchandise is subject to a minimum restocking/handling charge of twenty five percent (25%). No returns can be made on non stock merchandise.

9. LIMITED WARRANTY: All merchandise distributed by Seller is produced by reputable manufacturers. SELLER'S SOLE OBLIGATION TO BUYER IS TO USE REASONABLE COMMERCIAL EFFORTS TO SECURE THE MANUFACTURER'S PERFORMANCE UNDER THE MANUFACTURER'S PUBLISHED WARRANTY. IN NO EVENT WILL SELLER'S LIABILITY UNDER THIS SECTION EXCEED THE ADJUSTMENT, IF ANY, PROVIDED BY MANUFACTURER OF THE DEFECTIVE OR NONCONFORMING PRODUCT. EXCEPT AS TO TITLE, THERE ARE NO OTHER WARRANTIES, EITHER WRITTEN, ORAL, IMPLIED OR STATUTORY RELATING TO THE MERCHANDISE. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY TO ANY SALE.

10. LIMITATION OF LIABILITY: Subject to the limitations set forth herein, Seller's liability on any claim for loss or damage arising out of a sale to Buyer, or the resale, operation or use of any merchandise purchased from Seller, shall not exceed the price allocable to such merchandise or part thereof involved in the claim. IN NO EVENT SHALL SELLER BE LIABLE, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE FOR LABOR CHARGES, IN AND OUT CHARGES, SPECIAL, CONSEQUENTIAL, INCIDENTAL, LIQUIDATED OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF THE PRODUCT OR ANY ASSOCIATED PRODUCT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF BUYER'S CUSTOMERS, FOR SUCH DAMAGES.

11. ATTORNEYS' FEES: Applicant agrees to pay all costs of collection, including reasonable attorneys fees, collection agency fees, and other costs incurred by Express in or related to the collection of any amounts due Express. If legal action is commenced to enforce any of these terms or conditions, the prevailing party in such action shall pay any and all costs incurred in the action, including attorneys' fees, fees charged by investigators or collection agencies, and court costs.

12. ENTIRE AGREEMENT: This instrument, together with any credit application completed by Buyer, constitute the entire agreement between Buyer and Seller, and Buyer has not relied upon any representation or warranty, written, oral or implied, except as contained in this instrument or any such credit application. This instrument supersedes any prior agreements between Buyer and Seller, except that any obligations assumed by Buyer under any prior agreements between Buyer and Seller, including as between Buyer and Seller's predecessor, Express Pipe & Supply Co., Inc., are hereby reaffirmed by Buyer and shall be governed hereafter by this instrument.

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