These Sales and Credit Terms and Conditions (the Sales and Credit Terms and Conditions together with the Credit Application, or the Sales and Credit Terms and Conditions itself if there is no Credit Application, shall be referred to herein collectively as the “Agreement”) shall apply to buyers to whom CTS Cement Manufacturing Corporation (“CTS” or “Seller”) consents to furnish sales and/or extend credit. Completion of the Agreement conveys to Buyer no rights to credit, which is solely at Seller's discretion. Seller's consent to extend credit to Buyer is made in reliance upon the representations of Buyer in the Agreement and in reliance upon any and all information furnished to Seller by Buyer whether directly or indirectly. Buyer acknowledges and agrees that the following Terms and Conditions apply to all sales, including credit sales, of Product by Seller to Buyer. Any terms or conditions proposed by Buyer which add to, vary from, or conflict with this Agreement are expressly rejected and can only be made effective in a written document signed and dated by an executive officer of CTS specifically referencing this Agreement and the order form to which they relate.

1. ORDERING: Buyer shall place orders using a valid Purchase Order (“PO”) either via U.S. Mail, email attachment, or fax by contacting the Order Desk, at which time a Sales Order Confirmation will be sent to Buyer for signature. The submission of an order does not constitute acceptance of the order by CTS. CTS may accept the order in whole or in part, in its sole discretion. If Buyer is applying for credit, CTS will determine the dollar amount of such credit limit at its sole discretion. CTS will notify Buyer in writing of the applicable credit limit, which is subject to change at any time in the sole discretion of CTS.
2. PAYMENT: Buyer shall make payment for the full amount of Seller's invoice(s) in U.S. Dollars without discount, adjustment, or set-off, in accordance with the agreed upon net payment days. If Buyer fails to comply with any of the stated payment terms, Seller, without limitation, may do one or more of the following: (1) terminate this Agreement and any other existing agreement between Buyer and Seller, (2) suspend deliveries until all indebtedness is paid in full, or (3) sell to Buyer on a cash-in-advance basis. If at any time, in the opinion of the Seller, the financial responsibility of the Buyer is impaired or unsatisfactory, deliveries may be suspended or Buyer may be placed on a cash-in-advance status until arrangements are made for security satisfactory to Seller, or at Seller's option, until all indebtedness to Seller is paid in full.
   
   At the Seller's discretion, payments from non-stocking and non-promoting dealers are subject to an additional 5% for all products purchased.
3. PAYMENT LOCATION: All sums owed by Buyer to the Seller are payable according to Seller's invoice terms. All payments are deemed received at Seller's counter when received at the location noted on Seller's invoice.
4. SHIPMENT AND DELIVERY: All product shipments will be made FOB Destination when Seller is making delivery, and FOB Shipping Point when Buyer is making delivery. For products shipped FOB Shipping Point, title and risk of loss will transfer to Buyer upon Seller tendering the product for delivery to the Buyer's carrier. For products shipped FOB Destination, Seller will ship products using Seller's carrier of choice in accordance with Seller's shipping policies at the time of shipment. Additional fees and charges may also apply. If Buyer requests Seller prepay and bill Buyer for freight charges, Buyer agrees that Seller retains the right to choose the carrier. Buyer shall examine all products upon receipt and shall notify Seller, as specified herein below, of all discrepancies and refusal to accept delivery of purchased product. Such notice shall be reasonably detailed and explain the discrepancy or why the purchased product was refused. If Buyer does not give Seller such notice as required herein, Buyer agrees that such products have been accepted by Buyer as of the date of shipment.
5. SECURITY INTEREST: The Buyer hereby grants Seller a security interest in all Product sold to Buyer by Seller now held or hereafter acquired, and all proceeds thereof, which will be deemed collateral for Buyer's debt to Seller until Buyer has paid Seller for such Product in full. In addition, Buyer authorizes Seller to file all necessary UCC-1 Financing Statements perfecting Seller's as security interest in the above collateral.
6. MATERIAL BREACH: A material breach of this Agreement includes, but is not limited to the following (each a “Material Breach”): Buyer's failure to perform any material obligations under this Agreement, including Buyer's failure to make any payment in full to Seller when due; any representation by Buyer to Seller relating in any way to financial status or credit responsibility of Buyer or any other party relied upon in granting credit to Buyer, whether heretofore or hereafter, which is untrue or misleading; the insolvency of Buyer or an assignment by Buyer for the benefit of creditors; institution of proceedings by or against Buyer in bankruptcy; appointment of a receiver of Buyer; dissolution, or merger of Buyer; and transfer of a substantial part of Buyer's assets.
7. REPAYMENT ACCELERATION AND INTEREST: in the event of Seller's Material Breach (as defined in Paragraph 4 above), and upon written notice to Buyer, Seller may terminate Buyer's credit and/or may declare all outstanding indebtedness of Buyer immediately due and payable, and interest thereupon shall accrue from the day after the payment is due at the maximum rate allowable by law. Termination, for any reason whatsoever, will not relieve Buyer of its obligation to settle any unpaid balances due Seller under this Agreement, but shall relieve Seller of any obligation to make additional deliveries.
8. NON-LIABILITY FOR TERMINATION: The parties have considered the possibility that one or both parties will incur expenses in preparing for performance of the Agreement and that one or both parties will incur expenses and suffer losses as a result of termination of Buyer's credit, and the parties have nevertheless agreed that neither party shall be liable for any damages by reason of such termination.
9. OFFSETS: In the event of Buyer's default under this Agreement, Seller, and any of its parents, subsidiaries or affiliates, may offset damages arising therefrom, including, without limitation, withholding payment, delivery or acceptance of Product, material or services, relating to any agreement or transaction with Buyer; its parents, subsidiaries or affiliates.
10. TAXES: Buyer shall bear applicable federal, state, municipal, and other government taxes (such as sales, use, etc.). Unless otherwise specified, prices do not include such taxes. Exemption certificates, valid in the place of delivery, must be presented to Seller prior to shipment if they are to be honored.
11. COMPLIANCE WITH U.S EXPORT LAWS: If Buyer delivers the products purchased from Seller to its customer who may use the products outside the United States, Buyer acknowledges and shall advise its customer that the products are controlled for export by the U.S. Department of Commerce and that the products may require authorization prior to export from the United States or re-export. Buyer agrees that it will not export, re-export, or otherwise distribute products, or direct products thereof, in violation of any export control laws or regulations of the United States.
12. SELLER'S TRADEMARK: CTS Cement, Rapid Set®, the Rapid Set® logo, and other CTS trademarks, service marks, graphics, and logos used in connection with the Sale are trademarks of CTS in the U.S. and/or other countries. The Buyer is granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks. Buyer agrees to comply with CTS Trademark Guidelines located at www.ctscement.com/trademarks.html.
13. LIMITED WARRANTY: CTS CEMENT MANUFACTURING CORPORATION WARRANTS ITS MATERIAL AGAINST ANY MANUFACTURING DEFECTS, AND, AT ITS SOLE OPTION, WILL REPLACE DEFECTIVE MATERIAL OR REFUND THE PURCHASE PRICE THEREOF, SO LONG AS A WARRANTY CLAIM IS PRESENTED TO CTS CEMENT MANUFACTURING CORPORATION WITHIN ONE YEAR FROM THE DATE OF SALE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FOREGOING. MISUSE OF THE MATERIAL VOIDS THE WARRANTY. CTS CEMENT MANUFACTURING CORPORATION DISCLAIMS ANY WARRANTY OF ANY OTHER KIND, INCLUDING ANY WARRANTY THAT THE GOODS ARE MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE. IN NO EVENT WILL CTS CEMENT MANUFACTURING CORPORATION BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES BASED ON OR ARISING FROM THE USE OF THE MATERIAL.
14. INDEMNITY: Buyer will indemnify, defend, and hold harmless Seller, its officers, directors, shareholders, employees and agents, and their respective successors and assigns, against any claim, cause of action, loss, liability, damage, cost or expense of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including without limitation, attorneys' fees, expert and consultant fees, and other costs (whether or not suit is brought), arising out of or relating to the use or misuse of non-defective materials sold to Buyer by the Seller as the subject of this Agreement.
15. CLAIMS REGARDING PRODUCT: All claims of Buyer with respect to quality, quantity, or delivery of Product sold and delivered pursuant to mutual agreement shall be deemed waived and forever barred unless Buyer notifies Seller of the nature and details of the claim(s) in writing within fifteen (15) days after receipt of the Product from the Seller. Any such claim which is not asserted as a claim, counterclaim, defense or set-off in a third-party dispute resolution proceeding instituted within one (1) year after the cause of action arises shall be forever waived, barred and released.
16. FORCE MAJEURE: Seller shall not be liable for any delay in the fulfillment of or failure to fulfill any order for any cause not reasonably within the control of Seller (including without limitation any allocation program in effect pursuant to Government direction or request or instituted in cooperation with any Government authority, fires, Acts of God, terrorism, accidents to, breakdowns or mechanical failure of machinery or equipment, however caused, failure of delivery of materials from normal sources, strikes, lockouts or other labor troubles). In the event of Seller's inability to fulfill or delay in fulfilling any order by reason of any such cause, Seller may cancel such order in whole or in part or delay performance hereunder for such reasonable period as may be necessary to permit Seller to fulfill such order.
17. GOVERNING LAW: This agreement will be governed by, construed, and interpreted in accordance with the laws of the State of California, including, without limitation, the Uniform Commercial Code as adopted by the State of California, with the same full force and effect as if this agreement was entered into and carried out entirely within such state. The rights and remedies of CTS hereunder supplement CTS' other rights, whether existing under the Uniform Commercial Code or otherwise, and all such rights and remedies are deemed cumulative and not exclusive.
18. AGREEMENT TO ARBITRATE: Any controversy or claim arising out of or in any way related to this Agreement, or the breach thereof, shall be resolved by binding arbitration in Los Angeles, California, before a single neutral arbitrator, who shall be a retired Judge of a California court, under the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award may be entered in any court having jurisdiction thereof. All fees associated with the arbitration shall be shared equally by the parties.
19. ATTORNEY'S FEES: In the event that a collection agency is engaged and/or legal proceedings are commenced in order to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to recover all costs of collection, including court costs and reasonable attorney's fees.
20. RELATIONSHIP OF PARTIES: Buyer's relationship with Seller is that of an independent contractor. Nothing herein contained may be construed as to create a partnership, joint venture, or franchising relationship between CTS and Buyer. Buyer will not have, and will not represent that It has, any power, right or authority to bind Seller, or to assume or create any obligation or responsibility, express, implied or by appearances, on behalf of Seller or in Seller's name. In order for CTS to determine Buyer's continued credit worthiness, Buyer agrees to notify CTS in the event of a sale of the stock or other ownership interests of Buyer or a sale of more than 50% of the assets of Buyer.
21. WAIVER: Waiver by CTS of any term, provision or condition of this Agreement on any particular order or orders will not be deemed to be a waiver of the same term, provision or condition on any other orders.
22. ENTIRE AGREEMENT: These conditions embody the entire agreement and understanding of the parties hereto and supersede any prior agreement or understanding between them with respect to the purchase of CTS Products or provision of services. Whenever possible, each provision of this Agreement must be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this agreement is prohibited or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions hereof.
23. RENEWAL: In the event Buyer does not make any purchases from CTS for a period of twenty-four consecutive months, CTS may at its sole discretion require Buyer to sign a new Agreement and submit a new Credit Application.