1. Terms and Conditions. These Terms and Conditions (“Terms”) govern the sale of products by Banner Supply Co. and/or its affiliated, parent, and subsidiary companies (collectively, “Banner”). “Products” means the products identified on the “Delivery” or “Pick-Up” Ticket(s) (“Ticket”) issued by Banner to customer. All references to Customer, contained herein, shall mean the individual, political subdivision, partnership, corporation, or other business entity, or its appointed representative issuing a purchase order (verbally or in writing) for the Products to be furnished by Banner, for a specific job or Project. The person signing the Ticket on behalf of Customer represents and warrants to Banner he or she is authorized to do so and these Terms shall be binding upon Customer. The acceptance of orders, whether oral or written, is conditioned on Customer’s agreement to these Terms. Acceptance of delivery of Products sold hereunder constitutes Customer’s voluntary assent to the Terms. These Terms, the other terms specified by Banner on the Ticket(s) and Invoice(s), and the terms of the Credit Agreement between Banner and Customer, if applicable, represent the final and complete agreement of Banner and Customer as to the sale and purchase of Products and no other terms or conditions adding to or modifying the same shall be binding upon Banner unless made in a writing signed by a principal officer of Banner at its home office in Miami-Dade County, Florida. 

2. Price and Payment. Customer agrees to pay for all Products purchased by the 10th day of the month following purchase. Any attempt by Customer to add pay when paid provisions in purchase orders or any other documentation provided to Banner is hereby rejected. A finance charge of 1½% per month will be assessed on any balance, which is not timely paid until such balance is paid in full. No payments shall be subject to any setoffs, deductions, or claims, unless agreed to in writing by an authorized representative of Banner. Regardless of any statement appearing on a check or otherwise, any amount received by Banner may be applied against any amount owing by Customer in Banner’s sole and absolute discretion, and Banner’s acceptance of a payment in an amount less than due shall in no way be an accord and satisfaction or prejudice Banner’s rights and remedies to collect the full amount due. Time is of the essence with respect to Customer’s obligation to make payments to Banner. Prices do not include any sales taxes or other charges levied by any governmental authority upon the sale, use, or transportation of the Products, all of which shall be paid by Customer. 

3. Shipping/Title/Risk of Loss. All Products will be either (a) tendered to Customer or to Customer’s carrier at: (a) Banner’s warehouse designated on the Ticket or (b) delivered to the “SHIP TO” location specified on the Ticket. Title and risk of loss of Products tendered at Banner’s warehouse shall transfer when the Products are loaded onto Customer’s or Customer’s carrier’s trucks. Title and risk of loss to Products delivered to the “SHIP TO” location specified on the Ticket shall transfer at the time the Products are delivered to the “SHIP TO” address specified on the ticket. Delivery shall be construed to mean truck delivery, as close to the jobsite or designated storage area, as is practicable for a loaded truck and/or trailer, operating under its own power, without risk of accident, injury, or undue delay. Customer shall maintain suitable access for delivery of goods. Delivery beyond a point accessible to loaded trucks and/or trailers shall be at the risk of Customer. Any damage to Banner’s delivery equipment or cargo as a result of assisting its trucks and/or trailers to a point beyond that of reasonable access shall be the responsibility of Customer. Any handling of the Products after transfer of title and risk of loss shall be at Customer’s sole risk. Banner shall retain a Uniform Commercial Code purchase money security interest in the Products until final payment is received. Dates of shipments are estimated and not guaranteed. 

4. Product Inspection; Non-conformity. Customer must inspect the Products within 48 hours after delivery and notify Banner in writing of any damage or non-conformity. Failure to make inspection and deliver written notice of damage or non-conformity within such 48-hour period shall constitute irrevocable acceptance of the delivered Products and a waiver of any damage or non-conformity. As Customer’s sole and exclusive remedy for any damaged or non-conforming Products of which Customer has delivered to Banner timely notice, Banner, at Banner’s election, shall either: (a) replace the damaged or non-conforming Products; or (b) refund the price paid by Customer to Banner for such damaged or non-conforming Products. 

5. Cancellations; Returns. If Customer fails to make payment in accordance, or otherwise comply, with these Terms or any other agreement between Customer and Banner, Banner may, at its option (and in addition to other remedies) cancel any unshipped portion of Customer’s order, without liability to Banner and with Customer to remain liable for all unpaid amounts. Subject only to Section 4 above, Products cannot be returned, and orders, once accepted by Banner, cannot be cancelled without Banner’s prior written consent, which may be granted or withheld in Banner’s sole and absolute discretion. All Products accepted by Banner for return and refund are subject to a restocking fee of 20% of the price of cancelled or returned Products plus all shipping costs.  

6. WARRANY AND DAMAGES DISCLAIMER. Banner does not manufacture the Products. Banner is not responsible for manufacturer’s warranties. Products are sold “AS IS” and Banner does not make and EXPRESSLY disclaims any and all representations, warranties and guaranties of any kind, WHETHER EXPRESSED OR IMPLIED, AS TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. Recommendations, advice, representations, warranties, commitments or agreements given or made by any person, including employees or representatives of Banner, that are inconsistent with the foregoing disclaimer shall not be binding upon Banner, unless in a writing signed by a principal officer of Banner. Banner’s only obligation is to provide the Products ordered by Customer (which order is accepted by Banner) without regard to the Products’ appropriateness to Customer’s application. IN NO EVENT SHALL BANNER BE LIABLE FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR SIMILAR DAMAGES OF ANY KIND. 

7. Release/Indemnification. Customer: (a) on behalf of itself and its insurers and its and their respective successors and assigns, hereby waives all liabilities, losses, claims, damages, penalties, actions, lawsuits, judgments, costs and expenses of any kind (including attorneys’ fees) arising out of or related to: (i) the unloading, spreading, stocking or storage of the Products, (ii) the possession, use or installation of any Products, or (iii) any re-sales of Products by Customer to a third party (“Claims”), against Banner and its agents, officers, employees, representatives and contractors and all of their respective successors and assigns (“Banner Parties”), and (b) shall indemnify, defend and hold Banner Parties harmless against and from all Claims. 

8. Force Majeure. Delay in delivery or non-delivery, in whole or in part, by Banner shall not be a breach or default by Banner if performance is delayed or made impracticable by the occurrence of any one or more of the following: (a) fires, floods, or other casualties, (b) wars, riots, embargoes, governmental regulations or martial law, (c) inability to obtain necessary materials from usual sources of supply, (d) shortage of transportation or delays in transit, (e) strikes or other labor troubles, and (f) other conditions not reasonably within Banner’s control, whether or not of a kind mentioned herein. 

9. Choice of Law and Jurisdiction. These Terms shall be governed by the laws of the State of Florida, without regard to its choice of law provisions. In the event of any litigation arising out of, or otherwise relating to, these Terms and/or the relationship between Customer and Banner, Customer agrees that venue shall be an appropriate Court of competent jurisdiction in Miami-Dade County, Florida. Customer hereby waives the right to a jury trial with respect to any action arising out of, or otherwise relating to, these Terms and/or the relationship between Customer and Banner. 

10. Miscellaneous. Customer shall pay to Banner all costs of collection, including, without limitation, reasonable attorneys’ fees and costs, incurred by Banner in collecting any money due from Customer and enforcing Banner’s rights under these Terms, the other terms specified by Banner on the Ticket(s) and Invoice(s), the terms of the Credit Agreement between Banner and Customer, if applicable, and Florida law (including, without limitation, paralegal fees and the fees of expert witnesses and consultants, at all levels, including appeals). The unenforceability or invalidity of any one or more portions of these Terms shall not render any other portion unenforceable or invalid, which remaining portions shall continue in full force and effect. No waiver by Banner of any term or any obligation of Customer shall constitute a waiver of any other term or obligation. Customer shall not assign or transfer its rights or obligations under these Terms without the prior written consent of Banner. Which party prepared these Terms shall have no bearing on their construction.