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Sales Terms and Conditions

All quotes by, orders to, and sales by Hawaii Planing Mill, Ltd., d/b/a HPM Building Supply, 87ZERO, et al. (“Seller”) are subject to and governed by the following terms and conditions (“Sales Terms”). The customer/buyer (“Buyer”) agrees to be bound by these Sales Terms by ordering and/or purchasing, any goods, products, materials, or services (hereafter collectively “Goods”) from Seller.

1.  Force Majeure. Delay in delivery or non-delivery in whole or in part by Seller shall not be a breach of any sale if performance is made impracticable by the occurrence of any events beyond Seller’s control including, but not limited to, any one or more of the following: (1) fires, floods, inclement weather, or other casualties or acts of God; (2) wars, riots, terrorism, civil commotion, embargoes, governmental regulations or martial law; (3) Seller’s inability to obtain necessary materials (finished or otherwise) from its usual sources of supply; (4) shortage of cars or trucks or delays in transit; (5) existing or future strikes or other labor troubles affecting production or shipment, whether involving employees of Seller or employees of others, and regardless of responsibility or fault on the part of the employer; and/or (6) epidemics, pandemics, quarantines and governmental orders, and/or (7) any other contingencies of manufacture, supply, or shipment, whether or not of a class or kind mentioned herein.

 

2.  EXCLUSION OF WARRANTIES.  ANY AND ALL MANUFACTURER’S WARRANTIES MAY BE ENFORCEED DIRECTLY AND SOLELY AGAINST THE MANUFACTURER IN ACCORDANCE WITH THE TERMS OF SUCH MANUFACTURER WARRANTIES.  THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND BY SELLER WITH RESPECT TO ANY GOODS OR PRODUCTS SOLD BY SELLER INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY AND/OR ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

 

SELLER DOES NOT WARRANT AGAINST, NOR WILL BE LIABLE FOR WARPING OR WEATHERING OCCURING AFTER DELIVERY, AT SELLER’S SHIPPING POINT, NOR DOES SELLER WARRANT AGAINST, NOR WILL IT BE LIABLE FOR CHECKING, LEAFING, SPLITTING, AND OTHER WEATHERING OF LUMBER AND PLYWOOD PRODUCTS.

 

THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND BY SELLER WITH RESPECT TO CUSTOM ITEMS PRODUCED BY SELLER, OR ANY INSTALLATION OR REPAIR SERVICES PROVIDED BY SELLER (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE), AND SELLER SHALL NOT BE RESPONSIBLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND UNDER ANY CIRCUMSTANCES.

 

3.  LIMITATION OF REMEDIES & DAMAGES. BUYER’S REMEDIES IN CONNECTION WITH ANY NONCONFORMING AND/OR DEFECTIVE GOODS OR PRODUCTS PROVIDED BY SELLER SHALL BE LIMITED TO RETURN OF THE GOODS OR PRODUCTS AND REPAYMENT OF THE PURCHASE PRICE, OR REPLACEMENT OF THE NONCONFORMING GOODS OR PRODUCTS BY SELLER, AT SELLER’S OPTION. SELLER SHALL NOT UNDER ANY CIRCUMSTANCES BE RESPONSIBLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LABOR, PAINTING AND/OR OTHER COSTS INCURRED TO REMOVE AND/OR REPLACE ANY GOODS OR PRODUCTS FROM A WORK OR STRUCTURE.

 

4.  Notice of Rejection. Buyer shall inspect all Goods furnished by Seller immediately and prior to use or incorporating them into any work or structure. Notice of rejection of any Goods, and/or any alleged nonconformity or defect (collectively “nonconformity”) in any Goods, must be made in writing and delivered to Seller within 24 hours of purchase or, if the Goods are delivered to Buyer’s job site, then within 24 hours of such delivery. Such notice must state with particularity the basis of the rejection and/or any alleged nonconformity of the Goods and describe with particularity the portion of the Goods being rejected. Unless Buyer provides such notice within this time, Buyer will be deemed to have accepted all Goods in all respects, waived any claims of nonconformity with respect to the Goods, and agreed that the Goods are without any nonconformity. Seller shall have the right to make an on-site inspection of any Goods rejected. Buyer shall take all appropriate actions to protect and preserve any rejected Goods in the same condition that they were in at the time of delivery.

 

5.  Delivery & Acceptance; Title to Goods.  The Risk of Loss passes to Buyer upon delivery of the Goods to the destination designated by Buyer.  If delivery is by common carrier, delivery by Seller to the carrier at the point of origin shall constitute delivery to Buyer and thereafter the shipment shall be at Buyer’s risk, and any claims of Buyer for loss or damage must be made against the carrier. Until fully paid, Seller expressly retains title to all Goods to secure payment and a security interest in the same. Title to Goods passes to the Buyer upon receipt of full payment of the total purchase price thereof. Upon Buyer’s default, Seller may retake possession of the Goods without prior legal process and Seller may pursue any other remedies that may be available to Seller. Any claims for shortages shall be noted on Seller’s delivery receipt by Buyer at the time of delivery; otherwise, Seller shall not be responsible for the same. If, upon delivery at job site, there is not present at the job site an employee or agent of Buyer authorized to accept delivery and sign a delivery receipt evidencing delivery of the Goods, then Seller shall have the right to deposit the Goods at the job site without obtaining a signed receipt therefore, and Buyer agrees to liability for payment for all such Goods as if a delivery receipt were signed by an authorized agent of Buyer.

 

All regularly stocked (non-special order) merchandise purchases must be picked up from Will Call within 4 days from notification that the product is available for pickup.  After 4 days Seller may cancel the Buyer’s order and pending payment and return the product to the store inventory.

 

Seller may apply a monthly storage fee of 10% of any custom-made or special-order merchandise that is not claimed within 14 days from notification that the product is available for pickup. After 30 days, Seller may sell or otherwise dispose of any unclaimed goods to recover storage and handling costs, and all payments made by Buyer will be forfeited.

 

All special orders and orders consisting of Seller manufactured products will be invoiced upon receipt of goods by Seller or completion of manufacturing by Seller.

 

6.  Returns; Special Orders. Subject to paragraph 3 (Limitation of Remedies & Damages) above, Seller shall not accept return of any Goods for refund or credit for any reason unless: (a) Buyer produces to Seller the original invoice evidencing Buyer’s purchase of the subject Goods from Seller within 90 days of purchase (within 30 days of purchase for power tools) when merchandise is returned in new condition; and (b) Seller, in its sole and absolute discretion, elects to do so.  Commercial Buyers will pay a re-stocking fee of up to 25% of the amount of any refund or credit allowed by Seller. However, subject to paragraph 3 (Limitation of Remedies & Damages) above, there shall be no returns, refunds or credits allowed on any special-order items under any circumstances. Special orders cannot be cancelled and are non-refundable.

 

Credit Notes are subject to review and approval before final issuance of the credit. Valid refunds and credits, less applicable charges, will be done via original method of payment by Buyer except if cash amount is greater than $500.00 Seller may issue a check payable to the invoiced entity; payments by check will be refunded by Seller upon confirmation of funds transfer by Seller’s bank of deposit on Buyer’s check.

 

7.  Building Codes; Specifications. COMPLIANCE WITH APPLICABLE LAWS, SITE REQUIREMENTS, BUILDING CODES AND PROJECT SPECIFICATIONS, AND THE DETERMINATION OF THE SUITABILITY OF ALL GOODS AND PRODUCTS TO BE USED IN ANY PROJECT (AS WELL AS THE DESIGN AND INSTALLATION TECHNIQUES USED), ARE THE SOLE RESPONSIBILITY OF THE BUYER, OWNER, ARCHITECT, CONTRACTOR, CODE ENFORCEMENT OFFICIAL, OR OTHER CONSTRUCTION PROFESSIONAL. SELLER SHALL HAVE NO LIABILITY FOR THE SAME.

 

8.  Quotes/Estimates.  Any material quantities estimated or quoted by Seller are designed solely to provide Buyer with a rough estimate of the amount of material that may be used in a given project. These are based upon calculations, plans and/or other information provided to Seller and they assume, among other things, normal and typical construction techniques in the area. The actual amount of material used in a project may vary from the quote/estimate, at times significantly, due to a number of factors including, but not limited to, any subsequent changes to the plans (such as where Seller is provided preliminary plans to estimate materials, rather than final plans), project changes, and construction techniques used. Consequently, Seller cannot and does not make any representation or warranty regarding the actual amount of material that is needed or will be used in any given project, and no quote or estimate by Seller shall be construed to contain any such representation or warranty. 

 

Quoted prices are based upon full quantity order, include a cash payment discount, and are subject to change.  Any errors in a quote are subject to correction.  Special requirements may be subject to additional charges and extended delivery times.

 

 9.  Jobsite Delivery. In the event that Seller delivers any Goods to a jobsite, Seller will attempt to follow reasonable directions provided by Buyer or Buyer’s representative as to the location for placement of such Goods. It is the duty of the Buyer, not Seller, to specify and mark the location of any and all underground facilities (including, but not limited to, irrigation lines, septic tanks, or other) before Seller’s equipment enters the subject property, so that Seller’s operator may attempt to avoid the same. Nevertheless, Seller shall not be liable for any damage to any such underground facilities under any circumstances. In the event that Seller’s equipment comes into contact with or damages any grass, shrubbery, landscaping, driveway, sidewalk or other surface as Seller’s operator is attempting to follow directions for placement of Goods from Buyer or Buyer’s representative, Seller shall not be liable for any damage to the same under any circumstances.

 

10.  Loading. In the event that Buyer requests that Seller load any Goods onto Buyer’s vehicle, trailer or other equipment, Buyer understands that many of the Goods sold by Seller are heavy (including, but not limited to, crossties, lumber, plywood, doors, windows, concrete blocks, cement products, etc.) and that such Goods may shift or move during transit. It shall be the duty of the Buyer, and not the Seller, to review Buyer’s owner’s manual for weight capacity and to ensure prior to loading that any Goods to be loaded are not too heavy and will not cause damage to Buyer’s vehicle, trailer, or other equipment. Seller shall not be liable for any property damage (including, but not limited to, any damage to the Goods themselves) or personal injury caused in whole or in part by the weight of the Goods loaded or by movement of Goods during transit.

 

11.  E-mail Service.  At Buyer’s request, Seller will, as a service to Buyer, attempt to send invoices and statements to Buyer by e-mail.  However, Buyer understands that Seller does not control and cannot guarantee delivery by e-mail, and thus Buyer agrees to pay all invoices and statements within Seller’s payment terms even if any such e-mails are not received by Buyer.

 

12.  Dimensions and Descriptions. Dimensions and/or sizes on lumber and other materials are those generally used in the industry, but actual sizes may vary.

 

13.  Payments; Finance Charges; Collection Costs.  Monthly closing date is the last day of the month. Any charges or payments made after closing date will be reflected on the next month’s statement. All charges are due and payable by the last day of the next month following date of purchase.  A finance charge of 1.5% per month (18% per annum) will be applied to any unpaid balance owed by Buyer to Seller, and Buyer shall pay the same to Seller. Buyer shall pay all costs and expenses incurred by Seller, with or without litigation, in collecting any amount owed by Buyer including, without limitation, attorney’s fees and expenses, and expert fees and expenses.  All payments on account using a credit card will be subject to a 3% surcharge.

 

14. Dispute Resolution. Seller’s failure to exercise any rights under any invoice upon one or more occasions shall not waive Seller’s right to exercise such rights on any occasion.  Any partial invalidity herein shall not affect the whole.

 

Any controversy or claim arising out of or relating to the sale of goods or the provision of services by Seller shall be settled by binding arbitration in Hilo, Hawaii, in accordance with the Arbitration Rules, Procedures and Protocols of Dispute Prevention & Resolution, Inc. Any award rendered by the arbitrator shall be conclusive and binding upon the parties and may be entered in any court having jurisdiction thereof. The expenses of the arbitrator shall be shared equally, and the arbitrator shall award to the prevailing party its costs and reasonable attorneys’ fees incurred in connection with the arbitration.

 

15. Jurisdiction. The sale of goods or provision of services by Seller shall be governed by the laws of the State of Hawaii.

 

16.  Entire Contract. These Sales Terms supersede any and all prior and/or contemporaneous verbal and written agreements and representations between Buyer and Seller, and constitute the ENTIRE CONTRACT between Seller and Buyer with respect to the sale and purchase of all Goods shown on Seller’s invoice (except that if Buyer has entered into a credit agreement, installed sales contract, or special order with Seller, the credit agreement, installed sales contract and/or special order also forms part of the contract). These Sales Terms cannot be modified, altered, or supplemented by any purchase order or other writing from Buyer specifying different or other terms or conditions, or in any other manner, unless the same is done in a formal written addendum to these Sales Terms signed by Seller’s President. Otherwise, any attempt by Buyer to add to or vary these Sales Terms shall be void and of no effect.

 

17.  Amendment.  Seller may amend these Sales Terms at any time, and any changes or amendments will be reflected on this page for public view and shall be effective upon posting.