BUILDERS SUPPLY CO., INC. (“BUILDERS SUPPLY CO., INC.”) IS EXTENDING CREDIT TO YOU (THE “CUSTOMER”) SUBJECT TO THESE TERMS AND CONDITIONS. BUILDERS SUPPLY CO., INC.’S EXTENSION OF CREDIT TO YOU IS CONDITIONED UPON YOUR ASSET TO THESE TERMS AND CONDITIONS.
1. Acceptance. Acceptance of credit from Builders Supply Co., Inc. indicates your acceptance of these terms and conditions as written. Builders Supply Co., Inc. and the Customer will be collectively referred to as the “parties.”
2. Entire Agreement: The Customer’s executed [SELECT ONE OR MORE OF THE FOLLOWING, AS APPLICABLE] [Business Application] [Individual Application] [Contractor Charge Application] [Owner/Builder Credit Application] [Uniform Residential Loan Application] [Construction Loan Contract] and these terms and conditions (hereinafter collectively be referred to as the “agreement”) constitute the entire agreement between the parties related to Builders Supply Co., Inc.’s extension of credit to the Customer. The parties have not entered into any understandings or agreements, verbal or otherwise, in relation to Builders Supply Co., Inc.’s extension of credit to Customer, except as expressly written and set forth in the agreement. The parties agree that to the extent that either party or its agents or representatives have made representations or statements prior to or contemporaneous to the agreement that are not expressly provided for in the agreement, neither Builders Supply Co., Inc. nor Customer may reasonably rely upon such representations or statements unless they are expressly included in a written provision of this agreement.
3. Payments. All payments shall be due and payable upon Customer’s receipt of a statement of account from the Company, unless the specific terms of payment as set forth in the Builders Supply Co., Inc. executed credit application state otherwise (in which case the specific payment terms shall govern).
4. Default. Customer agrees that if it fails to make any payment required by the credit application or otherwise fails to comply with these terms and conditions, its open account will be considered in default and will be charged a monthly service fee of 1 1/3% percent of the total open account balance including any prior fees. Customer agrees that this service fee is reasonable and waives its right to contest this fee by executing the applicable loan contract or credit application and accepting credit from Builders Supply Co., Inc. Once a Customer’s open account is in default, Builders Supply Co., Inc. can seek immediate repayment of the entire open account, including any service fees, can refuse to extend further credit to Customer and can seek any other remedies.
5. Representation of financial conditions and Changed circumstances. Customer agrees that Builders Supply Co., Inc.’s extension of credit is based on Customer’s representations in the credit application. Customer, by executing the credit agreement, grants Builders Supply Co., Inc. consent to take any steps that Builders Supply Co., Inc. deems appropriate to verify Customer’s financial status and history, including obtaining Customer’s credit report. This consent is deemed to be ongoing and Customer can only revoke this consent by paying its open account with Builders Supply Co., Inc. in full (including any outstanding fees) and closing its account. Builders Supply Co., Inc. has sole discretion whether or not to extend credit to Customer based on the credit application and Customer’s financial history and status. If Builders Supply Co., Inc. determines that Customer has misrepresented Customer’s financial status or history, Builders Supply Co., Inc. may immediately declare the Customer’s account in default. Builders Supply Co., Inc. also reserves the right in its sole discretion and at any time to require prepayment of some or all of an open account, or to require cash on delivery in lieu of future credit transactions if it deems such terms to be appropriate based on an initial or subsequent review of the Customer’s financial status and history.
6. Waiver of the customer’s right to contest the open account. The Customer agrees that it must provide notice – as described below in the section designated “Notice” – of any charge to its account that it deems to be mistaken or otherwise incorrect within 20 days after Builders Supply Co., Inc. provides Customer with an invoice (at the time that Customer makes a purchase) or if Customer is not provided an invoice, within 20 days after Builders Supply Co., Inc. sends to Customer via first class mail its monthly statement of account. Customer agrees that if it does not provide notice within 20 days, the Customer waives its right to contest a charge.
7. Modification, Amendment or Cancellation. The agreement may not be modified, amended or cancelled except by express written agreement signed by an executive employee of Builders Supply Co., Inc. or the successor to his position at Builders Supply Co., Inc.. The only exception to this provision is for changes related to the address for notification as stated in the “Notice” paragraph below.
8. Severability. If a provision of the Contract is held to be invalid or unenforceable, the Contract shall continue in full force and effect and shall be construed as if the invalid or unenforceable provision was omitted.
9. Waiver. Builders Supply Co., Inc.’s failure to exercise a right or remedy or its acceptance of a partial or delinquent payment shall not operate as a waiver of any of its rights or Customer’s obligations under this agreement and shall not constitute a waiver of Builders Supply Co., Inc.’s right to declare an immediate or a subsequent default.
10. Choice of Law. The Contract shall be governed by and construed in accordance with the laws of the State of Nebraska, notwithstanding any state’s choice of law or rules to the contrary.
11. Notices. All notices shall be deemed received (a) when personally delivered to the party to be given such notice or other communication, (b) on the business day that such notice or other communication is sent by facsimile or similar electronic device, fully prepaid, which facsimile or similar electronic communication shall promptly be confirmed by written notice, (c) on the business day following the day such notice or other communication is sent by reputable overnight courier, and (d) on the third business day after being sent by first class United States mail. Notices to Builders Supply Co., Inc. must be sent to the Marketing Manager at Builders Supply Co., Inc., 5701 S 72nd St, Omaha, NE 68127. Notices to Customer will be deemed effective if sent or served on the address for Customer provided in the credit application. Should either party wish to modify its address for purposes of notification, it must do so in writing to the notice address of the other party provided above via first class mail.
12. Attorney Fees: If Builders Supply Co., Inc. obtains an award (whether in arbitration or from a court) in its favor, Customer agrees to pay Builders Supply Co., Inc. its actual attorney fees as well as its actual costs that it incurs in obtaining the award in its favor and in defending against any claims by Customer against it. These actual attorney fees and actual costs also include any actual attorney fees or actual costs that Builders Supply Co., Inc. expends in attempting to litigate its claims against or defend against claims by a third-party related to Builders Supply Co., Inc.’s extension of credit to Customer or its attempts to collect on Customer’s open account (e.g., an action to foreclose a lien or to obtain payment from a title company). The phrase “award in its favor” means any final award (regardless of the appealability of the award) in favor of Builders Supply Co., Inc. without regard to what percentage of its alleged damages Builders Supply Co., Inc. actually was awarded.
13. Arbitration: Any dispute arising from or related in any way to this agreement shall be resolved via binding arbitration. The arbitration shall be conducted in accordance with the rules of the National Arbitration Forum (“NAF”), provided that such rules shall be modified as necessary to comply with the requirements of this paragraph. Builders Supply Co., Inc. and Consumer agree that the arbitration will proceed as a document hearing and formally waive their right to seek a participatory hearing. Builders Supply Co., Inc. and the Consumer also agree to waive their right to discovery in arbitration. If for some reason a participatory hearing is ordered by the arbitrator, Builders Supply Co., Inc. and the Consumer agree that any such hearing will be held in Omaha, Nebraska. The arbitrator’s award shall be binding upon the parties and shall be entered and enforced as a judgment in any court of competent jurisdiction. Consumer hereby provides its express consent to entry by Builders Supply Co., Inc. of a consent judgment on the terms provided by any arbitration award.
14. Authorizations. All authorizations of the Company required or permitted to be given herein shall be deemed properly given only if given in writing by an executive employee of Builders Supply Co., Inc.
