Overview
All sales of products and services (“Products / Services”) by a vendor (“Vendor”) to or on behalf of Gypsum Management and Supply, Inc. and each of its subsidiaries and affiliates (“Business”) (each of the Vendor and the Business, a “Party,” and collectively, the “Parties”), are subject to these standard Vendor Terms and Conditions (“Terms”), and the Terms are incorporated into any verbal or written agreement (the “Agreement”) between the Parties relating to the Products/Services.
The Terms supersede all prior or contemporaneous understanding, agreements, and communications between the parties relating to the matters covered herein. All terms included on any Vendor provided invoice, statement, contract, purchase order, or other sale document (“Vendor Sale Document”) are specifically excluded and in the event of any conflict between specific provisions of the Vendor Sale Document and the terms hereof, the Terms govern.
1. Force Majeure
Business will not be liable for any failure or delay in performing its obligations hereunder during any period in which such performance is prevented or delayed by causes beyond its reasonable control, including without limitation, an act of God; flood or other severe weather; war; embargo; fire or other casualty; any act of terrorism or sabotage; a civil riot; strikes or labor shortages; pandemics or other public health crises; or product or material shortages (each a “Force Majeure Event”).
Upon the occurrence of a Force Majeure Event, the time for Business’s performance will be extended reasonably and the Parties will adjust all affected dates accordingly.
2. Termination for Convenience
Business may terminate the Agreement with Vendor for Business’s convenience, in whole or in part, at any time prior to shipment or performance of services by written or electronic notice to Vendor.
Upon receipt of such termination notice, Vendor shall promptly comply with the directions contained in such notice and shall, as required:
- Take action necessary to terminate the work as provided in the notice, minimizing costs and liabilities for the terminated work.
- Continue the performance of any part of the work not terminated by Business.
3. Termination for Breach
If Vendor fails to comply with these Terms, Business may, in addition to all other remedies available, terminate or restrict any purchase or payment immediately upon notice to Vendor.
Vendor certifies that it is solvent and that it will advise Business immediately if it becomes insolvent.
4. Code of Conduct
To the extent applicable, Vendor warrants that the Products and Services are produced in compliance with (i) all applicable requirements of the Fair Labor Standards Act, as amended, including Sections 18 and 28 thereof, and regulations and orders of the United States Department of Labor issued under Section 6 thereof; (ii) the Occupational Safety and Health Act; (iii) all federal civil rights, equal opportunity, discrimination, harassment, retaliation, and other workplace laws; (iv) the Immigration Reform and Control Act and other applicable immigration laws; (v) related state and local laws; and (vi) workers’ compensation laws.
Vendor represents and warrants that Vendor, its company personnel and its contractors are not engaged in and will not engage in any labor practice in violation of applicable laws, including unsanitary and/or unsafe labor conditions.
If Business determines that Vendor, its company personnel or its contractors have failed to comply with the foregoing, Business will be entitled to immediately terminate the Agreement without liability.
The Business’ Code of Conduct (the “Code”) is an integral part of the Agreement and Vendor, its personnel and its contractors agree to abide by the terms of the Code.
The Business Code of Conduct can be found at https://investor.gms.com/corporate-governance/govdocs/default.aspx .
5. Insurance Requirements
Vendor will maintain at all times while providing Products or Services to Business, at Vendor’s own cost and expense, insurance coverage of the types and in such amounts as described in Exhibit A with a company that has an A.M. Best Co. rating of “A-” or better.
The insurance coverage required under the Agreement must be occurrence coverage and maintained by each Vendor for a minimum period of five (5) years following any purchase by Business or, in the case of products being provided by Vendor, as long as the products are still held by Business for resale or use, whichever is longer.
Alternatively, claims-made coverage is acceptable with automatic five (5) year tail coverage.
Vendor will deliver to Business, prior to shipping products or performing services for or on behalf of Business and anytime upon request, a Certificate of Insurance including “Gypsum Management and Supply, Inc. and its subsidiaries, affiliates, parent entities, directors, officers, agents and employees” under the Vendor’s Additional Insured coverage.
6. Warranties
Vendor expressly warrants to Business that for the longer of (i) Vendor's standard warranty period and (ii) twelve (12) months from the date of delivery, all goods, services, and materials covered by the Agreement will:
- Be free of defects in workmanship, material and design.
- Conform to applicable specifications, samples, drawings, designs and requirements specified by Business.
- Be fit and sufficient for their intended purpose and operate as intended.
- Be merchantable.
- Be free and clear of any liens, security interests or other encumbrances unknown to Business.
The foregoing warranty shall survive Business's inspection, acceptance, use and subsequent sale of all Products and Services covered by the Agreement.
Vendor agrees to promptly correct all defects in any Products and Services covered by the Agreement or replace such Products or Services, without expense to Business, when notified by Business.
Payment for all Products and/or Services covered by the Agreement shall not constitute acceptance thereof by Business and such payments shall be deemed to have been made without prejudice to any and all claims Business may have against Vendor.
7. Indemnification
Vendor will indemnify and hold Business, its affiliates and their officers, directors, employees, and agents harmless from and against all suits, claims, liabilities, costs, payments and expenses (including attorneys' fees) arising out of or in connection with:
- Products or services provided by Vendor.
- Vendor’s actual or alleged breach of the Agreement.
- Any claim for damages to property or injuries to persons caused by Vendor’s employees, agents, products or services.
If any Vendor product or service is alleged or held to constitute infringement, Vendor shall, at its own expense, procure continued use, replace the product, or refund the purchase price together with related expenses.
Business shall indemnify, defend and hold Vendor harmless only to the extent liability results from Business’s breach of the Agreement and is not caused by Vendor.
8. Limitation of Liability
Business will not be liable, whether as a result of breach of contract, warranty, tort (including negligence) or otherwise, for special, consequential, incidental or punitive damages, including but not limited to loss of profits or revenue, cost of substitute products, facilities or services, downtime costs, delay costs, or claims of customers of Vendor.
Nothing contained in the Agreement shall limit the liability of Vendor.
9. Costs
In the event Business prevails in any legal action brought as a result of the commercial relationship with Vendor, Vendor will pay Business’s costs and expenses of collection, suit, or other action, including all actual attorney’s fees, paralegal fees and collection costs.
Vendor shall not assign its rights, obligations or claims under the Agreement without the prior written consent of Business.
10. Confidentiality
Both Business and Vendor acknowledge that each party may from time to time possess Confidential Information of the other party.
Confidential Information includes customer information, pricing information, product information, employee information, business planning information, administrative information, financial information, marketing activities and other confidential materials.
Each party shall protect Confidential Information using at least reasonable care and shall not disclose such information except as permitted under the Agreement.