PRODUCT SUPPLY TERMS AND CONDITIONS
THESE PRODUCT SUPPLY TERMS AND CONDITIONS (“"T&C"”) are entered into between Cambria Company LLC, a Minnesota limited liability company (“Cambria”), and the “Customer” identified on the Product Supply Agreement (the “PSA”) signed by Cambria and Customer that references these T&C, effective as of the “Effective Date” of the PSA. The PSA and these T&C shall be referred to collectively herein as this “Agreement.”
WHEREAS, Customer and Cambria desire that Cambria supply Cambria’s products to Customer, subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties further agree as follows:
1. Supply and Shipping.
1.1 Orders.Customer shall place orders (each an “Order”) for Cambria’s quartz surface products (“Products”) through Cambria’s online ordering platform, purchase orders (or similar ordering documentation) submitted to Cambria, by telephone to Cambria’s designated number, or via email to Cambria’s designated email address. For the avoidance of doubt, Orders shall not be binding on Cambria unless they are expressly confirmed by Cambria, and when confirmed they shall bind Customer to purchase and Cambria to supply the applicable Products, subject to the terms of this Agreement. Customer acknowledges and agrees that (i) Customer is solely responsible for the accuracy, integrity, and reliability of information it submits as part of an Order and incorrect or missing information may impact the delivery schedule, costs, and expenses, and (ii) Customer may not cancel or change a confirmed Order without Cambria’s prior written approval, and if changes are approved by Cambria after the Order is confirmed, they may impact the delivery schedule, costs, and expenses.
1.2 Shipping.Customer shall be responsible for payment of shipping, crating, freight and related charges, regardless of whether Customer or Cambria provides or arranges for shipment to Customer’s facility. All Products to be shipped domestically shall be shipped FOB Cambria’s facility, and title and risk of loss shall pass to Customer when the Products are loaded for shipping, and all Products to be shipped internationally shall be shipped EXW (Incoterms® 2020) Cambria’s facility, and title and risk of loss shall pass to Customer when the Products are made available for shipping.
1.3 No Requirements.Nothing in this Agreement obligates Customer to place orders for (i) Products, or (ii) any Cambria materials, point of sale materials, samples, products or services other than Products (“Materials”). Subject to the foregoing, the following Sections of this Agreement shall also apply to Materials ordered and/or purchased from Cambria, unless such orders or purchases are subject to separate terms and conditions or a separate agreement: Sections 1.1, 1.2, 1.3, 2.2, 2.3, 2.4, 2.8, 2.9, 3.3, 4.2 (last sentence), 4.3, 4.4, 4.6 and 6 through 17. For the purposes of the foregoing Sections, Materials ordered or purchased by Customer shall also be considered “Products.”
1.4 Nonexclusive.Customer acknowledges and agrees that (i) Customer has no exclusive territory related to Cambria or any Products, and (ii) Cambria may engage in, render services to, provide Products to, consult with or possess an interest in other entities and business ventures, whether or not such entities and ventures are competitive with Customer.
2. Product Pricing and Inspection.
2.1 Product Pricing.The purchase price for Products shall be Cambria’s applicable market pricing at the time the Order is confirmed by Cambria. Cambria may increase such pricing on thirty (30) days’ notice to Customer. Such notice may be provided via email, telephone, Cambria’s ordering platform, as part of an invoice or Order confirmation or in any other reasonable manner. Any Products ordered by Customer before a price increase goes into effect shall be charged or invoiced by Cambria at the Product purchase price in effect prior to the notification of the increase; provided that such Products are ordered in the ordinary course consistent with past practices. For the avoidance of doubt, this Section 2.1 does not apply to other materials, samples, products and services ordered or purchased by Customer from Cambria.
2.2 Payment.Cambria shall invoice Customer the applicable purchase price for Products and invoices are due and payable within the period of time stated on the invoice. Notwithstanding the foregoing sentence, if Customer is on prepay terms, Customer must pay the amount shown on the Order confirmation in full prior to the applicable Products being fabricated, shipped or picked up by Customer. Cambria may change Customer to credit terms or prepay terms at any time in Cambria’s sole discretion. Customer shall not have the right to set-off or make any deduction from payments for any reason. Unless otherwise provided herein, or as required by applicable law, payments received by Cambria will be applied first to any accrued and unpaid interest, then to Customer’s principal balance, and then to any other costs or expenses for which Customer is responsible. All amounts paid are nonrefundable. As between Cambria and Customer, Customer shall be exclusively responsible for payment of any applicable international, federal, state and local duties, taxes and assessments on the purchase of Products; provided that Customer shall not be liable for any taxes based on Cambria’s net income.
2.3 Credit Limit.Cambria may, in its sole discretion, establish a credit limit for Customer and adjust such credit limit from time to time. Cambria shall have no obligation to accept or confirm Orders, and may reject Orders and suspend or cancel delivery of Products, including, without limitation, Products ordered pursuant to Orders previously confirmed by Cambria, in the event that such credit limit is or would be exceeded by Customer. Cambria shall have no liability with respect to any such rejection, non-acceptance, non-confirmation, suspension or cancellation. Customer agrees to provide all documentation and information reasonably requested by Cambria in conjunction with establishing such credit limit, including, without limitation, credit references and financial information. In addition, Customer shall complete, sign and deliver a credit application upon Cambria’s request.
2.4 Disputed and Overdue Amounts.If Customer disputes any portion of any invoice or Order confirmation, Customer shall notify Cambria in writing within ten (10) business days from the date of the invoice or Order confirmation with sufficient detail to allow the parties to resolve the dispute in good faith; otherwise, such invoice or Order confirmation shall be deemed approved for all purposes. Overdue amounts shall bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate allowed by applicable law, until paid. To the extent not prohibited by law, Customer shall be responsible for all costs and expenses (including, but not limited to, attorney’s fees) incurred by Cambria in enforcing or attempting to enforce Customer’s payment obligations hereunder and any related judgment, regardless of whether suit is commenced. Cambria shall have the right to reject Orders and suspend or cancel delivery of Products, including, without limitation, Products ordered pursuant to Orders previously confirmed by Cambria, in the event that any invoice or, if Customer is on prepay terms, any amounts shown on an Order confirmation, becomes overdue or Customer is otherwise in default under this Agreement. Cambria shall have no liability with respect to any such rejection, non-acceptance, non-confirmation, suspension or cancellation. In such event, Cambria may also request Customer to sign and deliver a security agreement or deliver a personal guaranty each in form and substance acceptable to Cambria before having any obligation to continue to supply Products to Customer.
2.5 Product Inspection Timeline.Customer shall inspect Products within seven (7) days of delivery and either accept such Products, or, if any Products have Manufacturing Defects (as defined below), reject such defective Products. All Products shall be deemed accepted if Customer fails to provide written notice of rejection to Cambria within such period of time or if Customer proceeds to cut, sell or otherwise transfer the applicable Products. Without limiting the foregoing, Customer agrees that any and all claims of nonconformances or defects in Products must be submitted to Cambria before the applicable Product is cut. All nonconformances or defects with respect to Products are hereby waived upon acceptance of such Products.
2.6 Required Process for Rejection of Products.Any written notice of rejection must state in reasonable detail the grounds for rejection and Customer shall promptly provide any requested information and documentation to Cambria in order for Cambria to verify such claim. If Cambria, in its sole discretion, verifies such claim, Customer acknowledges and agrees that Customer’s sole and exclusive remedy with respect to any such defective Products shall be for Cambria, at Cambria’s discretion, to repair the defective Products, to replace the defective Products, or to credit Customer the purchase price for the defective Products. If Cambria replaces defective Products or provides a credit for defective Products, Customer shall, at Cambria’s option, (i) return the rejected Products to Cambria or Cambria’s designee, or (ii) destroy the rejected Products pursuant to Cambria’s written instructions. Cambria shall provide a credit to Customer, in the amount of Customer’s reasonable out of pocket expenses incurred with any such return or destruction (without markup), after Cambria’s receipt of documentation for the same. Cambria shall have no liability with respect to any delays associated with the processes under Sections 2.5 or 2.6. For the avoidance of doubt, Customer’s rejection of any Products pursuant to Sections 2.5 and 2.6 shall not relieve Customer of its payment obligations for such Products. Customer may not revoke its acceptance of Products and Cambria is under no obligation to accept returned Products. All notices to Cambria under Sections 2.5 and 2.6 must be submitted (a) in writing to Cambria Company LLC, Attn: Cambria Customer Care, 11000 West 78th Street, Eden Prairie, Minnesota 55344, (b) by email to CustomerService@CambriaUSA.com, or (c) by telephone at 1-866-CAMBRIA. Except as expressly set forth in this Agreement, Customer may not reject, return or exchange any Products without Cambria’s prior written approval.
2.7 Manufacturing Defects.A “Manufacturing Defect” means a manufacturing defect is a flaw in the Product that exists at the time the Product leaves Cambria’s facility that causes the Product to be different than its intended design. It does not apply to Product subjected to damage due to, without limitation, mishandling, abnormal use, misuse, physical abuse, improper storage, chemical exposure, UV exposure, direct or sustained heat or cold, including sudden or rapid changes in temperature or thermal shock, exposure to chemicals, outdoor installation or partially exposed outdoor installations, excessive pressure, force or loading applied from a person, utensil or object, including, but not limited to, cracks and/or chips resulting therefrom. Further, it shall not apply if Customer has not paid for the applicable Product in full.
2.8 Methods of Payment.If Customer elects to make payment by credit or debit card or ACH transfer, and such method of payment is allowed by Cambria, in its sole discretion, (i) Customer is responsible for providing a valid credit or debit card number or ACH account number at the time Customer submits payment, (ii) Customer represents and warrants that Customer (and the individual submitting payment) is an authorized user of the credit or debit card number or ACH account number provided, and Customer agrees to pay all charges resulting from Customer’s use of such method of payment, including, but not limited to, any unauthorized charges, and (iii) Customer agrees that Cambria may pass Customer’s credit, debit and ACH information and related information to its designated service provider(s) for their use in processing such payments.
2.9 Customer Credits.In the event that Cambria issues a monetary credit to Customer, such monetary credit shall be applied to the principal balance, accrued and unpaid interest, and any other costs or expenses for which Customer is responsible, in the manner determined by Cambria. Monetary credits cannot be transferred to other products, services, costs, expenses or invoices after they are applied. In addition, monetary credits cannot be refunded, exchanged, transferred or converted to cash or other compensation. Any monetary credit that remains outstanding for more than one hundred eighty (180) days after issuance by Cambria shall be voided, and Cambria shall have no liability with respect to such voidance. All outstanding monetary credits shall be terminated upon the termination of this Agreement.
2.10 Other Policies.Customer shall comply with Cambria’s policies and procedures made available to Customer from time to time, including, without limitation, the BORM Manual. Such policies and procedures may be made available via email, through Cambria’s customer portal, through Cambria’s ordering platform, or otherwise.
3. Term and Termination.
3.1 Term.The term of this Agreement (the “Term”) will commence upon the Effective Date and shall continue thereafter until terminated in accordance with these T&C.
3.2.1 Termination by Cambria.Cambria may terminate this Agreement or the applicable Order(s) for cause upon written notice if Customer (i) fails to make payment when due, (ii) breaches Sections 4.3, 5, 6.1 or 6.2 below, (iii) commits, or its principals commit, a crime or other act which would materially damage Cambria’s brand or reputation, or (iv) attempts to assign this Agreement in violation of Section 15 below.
3.2.2 Termination for Cause.Either party may terminate this Agreement or the applicable Order(s) for cause upon written notice if (i) the other party breaches a material term or condition and fails to cure such breach within thirty (30) days of the date that written notice of the breach is provided to the breaching party, (ii) the other party makes an assignment of all or part of its assets for the benefit of creditors, or becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors (collectively “Petitions”), if such Petitions are not dismissed within sixty (60) days of filing, or (iii) the other party fails to inform the terminating party of any Petition in writing within five (5) business days of the filing of such Petition.
3.2.3 Termination for Convenience.In addition, Customer or Cambria may terminate this Agreement, in Customer’s or Cambria’s sole discretion, for any or no reason, on at least sixty (60) days written notice to the other party. The parties agree that the foregoing is a reasonable period of notice for termination of this Agreement.
3.3 Effect of Termination.The terms and conditions of this Agreement shall survive its termination with respect to all Orders confirmed prior to the effective date of termination. Unless otherwise expressly provided, Customer shall pay for all amounts related to Orders confirmed by Cambria. Customer acknowledges and agrees that any amounts which may be incurred in relation to this Agreement or the Products are incurred voluntarily, at Customer’s sole risk, and with full knowledge that this Agreement may be terminated as set forth herein. Cambria shall not be liable to Customer for any amounts incurred in anticipation of this Agreement continuing for any period of time. Without limiting the foregoing, Cambria shall not have, and Customer hereby waives and releases Cambria from, any liability or obligation to repurchase or reimburse Customer for Products or any other Cambria materials, samples, products or services.
4. Representations, Warranties and Additional Covenants.
4.1 General.Each party represents and warrants that (i) the PSA has been validly signed and delivered by such party and this Agreement constitutes the legal, valid and binding obligation of such party enforceable against such party in accordance with its terms, subject to the principles of equity, bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, (ii) such party has all requisite authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement, and (iii) such party’s signature and delivery of the PSA and performance and compliance with the terms of this Agreement will not conflict with, result in a breach of, constitute a default under or require the consent of any third party under any license, sublicense, lease, contract, agreement or instrument to which such party is bound or to which such party’s properties are subject.
4.2 Specific to Cambria.Cambria’s warranty for Products can be found online at www.CambriaUSA.com/Customer-Care/Warranty and shall be provided in another reasonable form upon request. Customer acknowledges and agrees that such warranty does not apply to Customer. Customer shall make available and disclose such warranty to its customers and end users pre- and post-sale as is reasonably prudent and as required by applicable law and regulations, and require any of its contractors, subcontractors and non-end user customers to do the same. Cambria may amend, update or replace such warranty from time to time. Customer shall regularly review such warranty to ensure it maintains and provides its customers and end users the most recent version. EXCEPT FOR THE WARRANTIES EXPRESSLY INCLUDED IN THIS AGREEMENT, CAMBRIA DOES NOT MAKE AND HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT) WITH REGARD TO ANY PRODUCTS OR SERVICES, OR ANY MATERIALS OR INFORMATION RELATED TO OR PROVIDED THROUGH ANY PRODUCTS OR SERVICES, AND ALL SUCH PRODUCTS, SERVICES, MATERIALS AND INFORMATION ARE PROVIDED ON AN “AS IS” BASIS.
4.3 Specific to Customer.Customer represents and warrants that (i) Customer shall comply with all applicable laws, regulations, ordinances, rules, standards, policies and procedures related to its obligations and performance under this Agreement, its products and services, and its or its contractors’ cutting, fabrication, storage, installation, sale, transfer, shipping and other uses of Products, including, but not limited to, OSHA standards, and (ii) Customer shall have and maintain all licenses, permits, approvals, inspections and other matters required by applicable laws, regulations, ordinances, policies and procedures related to its obligations and performance under this Agreement or its products and services. Without limiting the foregoing, as it relates to controlling dust, including, without limitation, respirable crystalline silica generated by Customer or its contractors, Customer shall, and shall and require its contractors to, develop and implement dust exposure control plans.
4.4 Important Acknowledgement of Risks.Customer acknowledges and agrees that Product handling processes including, but not limited to, cutting, abrading, grinding and drilling of Products (“Handling Processes”) may create respirable dust particles containing crystalline silica which is an inhalation hazard if proper controls and procedures are not followed. Any person who inhales respirable crystalline silica may be at an increased risk of developing serious respiratory or lung-related disease, including, but not limited to, silicosis and lung cancer. Customer shall make available and disclose this Section 4.4, and any other safety notices provided by or on behalf of Cambria from time to time, to Customer’s employees, contractors, subcontractors, non-end user customers and any other individual or entity providing Handling Processes, and require such parties to do the same.
WARNING: This product can expose you to chemicals including silica, crystalline (airborne particles of respirable size), which is known to the State of California to cause cancer and birth defects or other reproductive harm. For more information, go to P65Warnings.ca.gov.
Customer Initials: ___________________
4.5 End User Claims.Customer shall respond to Product complaints from its customers and end users within three (3) days of notification from a customer or end user and investigate the claim within five (5) days of notification. Customer shall confer with Cambria’s Regional Product Representative or other designee immediately after investigating any Product complaint. Customer shall obtain from the applicable customer or end user any and all information and documentation requested by Cambria and promptly provide such information and documentation to Cambria, along with a completed claim submittal form (if applicable) in form and substance required by Cambria. Cambria’s Regional Product Representative or other designee will direct Customer regarding procedures for resolution of any Product claims, and Customer shall fully cooperate with Cambria in the resolution of any Product claims. Customer acknowledges and agrees that any Product claims are the sole responsibility of Customer to resolve. Notwithstanding the foregoing, in the event that a claim is made under Cambria’s warranty for Products (or an applicable predecessor, amended, updated or replacement warranty provided by Cambria), and Cambria determines that such claim is covered thereunder, Cambria shall provide a credit to Customer, in the amount of Customer’s actual and reasonable out of pocket costs (without markup), for any products or services provided by Customer pursuant to Cambria’s direction in the resolution of such claim.
4.6 Specific to Cambria.Customer shall not sell, distribute, supply or otherwise transfer any Cambria Products (in slab form and uncut) without prior written approval by Cambria’s Chief Sales Officer or other individual authorized by the Chief Sales Officer to provide approval. For the avoidance of doubt, a transaction prohibited by this Section 4.6 includes, but is not limited to, (1) a Customer’s Order for Products with the intent to resell such Products generally to non-end user customers or the public; and/or (2) a Customer’s Order for Products with the intent to engage a third party individual or entity to provide Handling Processes of Cambria Products in which case, Customer must confirm with Cambria that such third party is authorized by Cambria to provide Handling Processes. If Cambria’s prior written approval is provided, Customer agrees that the terms of this Agreement shall apply to such Reseller transactions, including without limitation, Customer’s obligations set forth in Section 8 below.
5.1 Confidential Information.For the purposes of this Agreement, “Confidential Information” shall mean all nonpublic, confidential and/or proprietary materials, information or data disclosed or otherwise made available by or on behalf of Cambria to Customer, including, without limitation, financial information, ideas, concepts, drawings, designs, software, inventions, discoveries, improvements, specifications, trade secrets, prototypes, recipes, processes, notes, memoranda, lists and reports concerning Cambria’s past, present or future research, technology, know-how, operating procedures, computer programs, products, subscribers, customers, prospective customers, suppliers, vendors, employees and/or contractors, sales and marketing plans, financial statements, business plans, loan information, product plans, costs and/or prices. Confidential Information shall also include the terms of this Agreement and any other information, in any form, which should reasonably be considered confidential or proprietary. Confidential Information shall not include information which was previously lawfully known to Customer free of any confidentiality obligation or information which is or becomes publicly available other than by unauthorized disclosure. Customer shall bear the burden of proof for relying on one of these exceptions.
5.2 Use and Disclosure.Customer shall (i) keep all Confidential Information confidential and not use Confidential Information except as necessary in the course of performing Customer’s obligations under this Agreement, (ii) use the same degree of care Customer uses to protect its own proprietary information (but in no event less than a reasonable degree of care) to prevent the unauthorized use or disclosure of Confidential Information, (iii) not “reverse engineer,” make derivatives or adaptations of, duplicate or copy in any fashion any Confidential Information, in whole or in part, without the prior written consent of Cambria, (iv) immediately notify Cambria of any use or disclosure of Confidential Information not permitted by this Agreement of which Customer becomes aware, and (v) not disclose or otherwise make available any Confidential Information to anyone apart from its employees and contractors who must each have a need to know such information for the purpose of performing Customer’s obligations under this Agreement, provided that Customer informs all such employees and contractors of the obligations under this Agreement and such employees and contractors are obligated in writing to comply with duties of confidentiality and non-disclosure at least as protective of Confidential Information as this Agreement. Customer acknowledges and agrees that Customer shall be fully responsible and liable for the acts and omissions of Customer’s employees and contractors and that all such acts and omissions shall be deemed Customer’s acts and omissions. Customer will abide by any of Cambria’s policies and procedures related to the protection of its Confidential Information and/or proprietary information, as may be adopted or modified from time to time.
5.3 Compelled Disclosure.Notwithstanding anything to the contrary, in the event that Customer is legally compelled to disclose any Confidential Information pursuant to a subpoena, order, process or other requirement of a judicial or other governmental agency, Customer may disclose such Confidential Information provided that Customer (i) notifies Cambria as soon as practicable prior to making such legally compelled disclosure, (ii) provides any reasonably requested assistance to Cambria in obtaining a protective order, and (iii) only discloses that portion of Confidential Information that, in the opinion of Customer’s legal counsel, Customer is legally compelled or otherwise required to disclose.
6. Additional Rights and Obligations.
6.1 Cambria IP.Customer acknowledges and agrees that as between Customer and Cambria, Cambria is and shall remain the exclusive owner of Cambria’s marks, names, logos, designs, content, data, products, software, hardware, Confidential Information, Products, work product and other deliverables created or developed by Customer for Cambria, and all patent, copyright, trade secret, trademark and other intellectual property rights therein (collectively, “Cambria IP”). To the extent Customer now or in the future owns any such rights, Customer hereby irrevocably transfers, assigns and conveys all right, title and interest in and to all such rights to Cambria, without further compensation or action on behalf of Cambria. Customer shall not challenge or assist any third party to challenge Cambria’s ownership of such rights or the validity or enforceability of such rights.
6.2 Reservation of Rights.Except as expressly recited in this Agreement, no rights or obligations are to be implied and no license is hereby granted to Customer or any other party, directly or indirectly, under any patent, trade secret, copyright or other intellectual property right now held by, which may be obtained by or which are or may be licensable by Cambria. Cambria reserves all rights not expressly set forth in this Agreement. Customer may not use Cambria’s names, marks, images, photography, logos, Cambria IP or other intellectual property without Cambria’s prior written approval. Customer agrees that all such uses shall inure solely to Cambria’s benefit. Customer shall include any proprietary notices specified by Cambria and must use such intellectual property in accordance with Cambria’s written guidelines and quality standards and in a manner consistent with the reputation and prestige of such intellectual property. Customer shall not (i) make any changes to the approved form and manner of any of Cambria’s names, marks, images, photography, logos, Cambria IP or other intellectual property without the prior written consent of Cambria, (ii) challenge or assist any third party to challenge Cambria’s ownership of such rights or the validity or enforceability of such rights, or (iii) apply for, obtain, incorporate or use any names, logos or marks that are the same as or confusingly similar to such intellectual property. Customer shall immediately cease all uses of Cambria’s names, marks, images, photography, logos, Cambria IP and other intellectual property upon termination of this Agreement.
6.3 Reporting.Customer shall fully cooperate with Cambria and provide Cambria reasonably detailed reporting in connection with Products at the intervals, in the forms and with the details and information reasonably requested by Cambria.
6.4 Use of Customer’s Name.Unless otherwise requested by Customer in writing, Cambria may publicize Customer’s selection to do business with Cambria, including Customer’s name and Customer’s logos and/or marks. Cambria agrees that all uses of such names, logos and marks shall inure solely to Customer’s benefit.
7. Relationship.Nothing contained herein shall be construed to establish an employer-employee, partnership, joint venture, franchisor-franchisee, parent-subsidiary or other relationship, except for that of independent contracting parties. Neither party shall make any such representations to a third party or incur liability on behalf of the other party except as specifically agreed in connection with the performance of their duties hereunder. Without limiting the foregoing, the parties agree that this Agreement and the relationship between the parties does not fall within the provisions of Minnesota Statutes, Chapter 80C, or the regulations, rules and orders promulgated thereunder, as amended, superseded or replaced from time to time. Customer acknowledges and agrees that Customer shall be fully responsible and liable for the acts and omissions of Customer’s employees and contractors and that all such acts and omissions shall be deemed Customer’s acts and omissions.
8. Indemnification, Liability and Insurance.
8.1 Indemnification.Customer agrees to indemnify, defend and hold Cambria and its past and present managers, governors, members, agents, affiliates, contractors, successors and assigns (collectively “Cambria Parties”) harmless from and against any and all losses, liabilities, suits, actions, obligations, fines, damages, judgments, penalties, claims, counterclaims, causes of action, charges, costs and expenses (including, but not limited to, attorneys’ fees, disbursements and court costs prior to trial, at trial and on appeal) (collectively, “Claims”) arising out of or related to (i) Customer’s products and services, (ii) Customer’s breach of this Agreement, (iii) property damage, personal injury or death caused or alleged to have been caused by Customer, its contractors or its direct or indirect customers, and/or (iv) Customer’s, its contractors’ or its direct or indirect customers' cutting, fabrication, storage, installation, sale, transfer, shipping, Handling Processes, and other uses of Products, including, without limitation, any third party claims or actions relating to the health effects of Products and any warranties or remedies provided or afforded to customers, end users or consumers by Customer, its contractors or its direct or indirect customers; provided, the foregoing provisions of this Section 8.1 shall not apply to the extent such Claims arise out of the gross negligence or willful misconduct of Cambria.
8.2 Liability.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CAMBRIA OR ANY OTHER CAMBRIA PARTIES BE LIABLE UNDER ANY LEGAL THEORY FOR (I) ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR ITS TERMINATION, THE RELATIONSHIP BETWEEN THE PARTIES OR PRODUCTS, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTEREST OR INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY DAMAGES EXCEPT TO THE EXTENT OF ACTUAL, DIRECT DAMAGES RELATED TO PRODUCTS INCURRED BY CUSTOMER, NOT TO EXCEED THE PURCHASE PRICE PAID BY CUSTOMER UNDER THE AFFECTED ORDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR, IF THERE IS NO AFFECTED ORDER, THE PURCHASE PRICE PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS SHALL NOT INCREASE THIS LIMIT. Any claims or actions by Customer arising in connection with this Agreement must be brought within twelve (12) months of the date such cause of action accrued under applicable law.
8.3 Insurance.Customer shall maintain the following insurance policies: (i) workers’ compensation insurance affording statutory coverage and containing statutory limits for the state(s) in which Customer is conducting business related to this Agreement, (ii) commercial general liability written on an occurrence form basis with minimum limits of coverage of not less than $1,000,000 per occurrence which must include the following coverages: broad form property damage, contractual liability and products and completed operations, and (iii) automobile liability insurance hired and non-owned vehicles with minimum limits of not less than $1,000,000 per occurrence combined single limit for personal injury, including bodily injury, death and property damage. All insurance policies shall (a) be primary and not contributory, (b) contain a waiver of subrogation, and (c) name the Cambria Parties as additional insureds under each policy (except for worker’s compensation). Customer shall furnish certificates of insurance to Cambria upon request.
9. Notices.Except as otherwise expressly permitted, notices under this Agreement shall be in writing and shall be deemed provided and effective (i) when delivered personally, (ii) three (3) business days after the date sent by certified mail, postage prepaid with return receipt requested to the notice address contained herein, or (iii) upon written confirmation of delivery by recognized international carrier sent by overnight service. Notices to Cambria shall be sent to the following address: Cambria Company LLC, Attn: Chief Financial Officer, 11000 West 78th Street, Eden Prairie, Minnesota 55344. A copy of any notice to Cambria shall also be sent to the following address: Cambria Company LLC, Attn: Legal Department, 11000 West 78th Street, Eden Prairie, Minnesota 55344. Notices to Customer shall be sent to the billing address set forth in the PSA. Any party may change its contact information upon written notice to the other party containing the modified contact information.
10. Governing Law.This Agreement and all disputes arising out of or related to this Agreement, its termination or the relationship between the parties (collectively “Dispute”) shall be governed by, construed and enforced according to the laws of the State of Minnesota, without regard to its conflict or choice of law principles. The foregoing is not intended to make applicable any Minnesota law that would otherwise not apply to a Dispute. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any Customer that is not a resident of the State of Minnesota hereby waives the application and provisions of Minnesota Statutes, Chapter 80C, and the regulations, rules and orders promulgated thereunder, as amended, superseded or replaced from time to time. Any action arising out of or relating to this Agreement or any Dispute shall be brought only in the state or federal courts of Minnesota, and all parties expressly consent to such courts’ jurisdiction and irrevocably waive any objection with respect to the same, including any objection based on forum non conveniens.
11. Dispute Resolution.The parties agree to meet and confer in good faith on any Dispute prior to initiating any litigation or similar proceedings with respect thereto. As soon as a Dispute is recognized by either party, it will communicate the substance of such Dispute to the other party. Once a Dispute has been raised, the parties will make reasonable efforts to reach a resolution within fifteen (15) days. Notwithstanding this Section 11, no disputant shall be required to satisfy the informal Dispute resolution processes outlined in this Section 11 for any cause of action that would entitle such disputant to injunctive relief.
12. Jury Waiver.EACH OF THE PARTIES WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO THE ENFORCEMENT OR INTERPRETATION OF THIS AGREEMENT AND ANY DISPUTE OR OTHER LEGAL ACTION OR PROCEEDING THAT ARISES OUT OF OR IS RELATED TO THIS AGREEMENT, ITS TERMINATION OR THE RELATIONSHIP BETWEEN THE PARTIES, WHETHER ARISING OR ASSERTED BEFORE OR AFTER THE EFFECTIVE DATE.
13. Entire Agreement.This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties with respect to the subject matter hereof; provided that this Agreement does not impair, limit or operate as a waiver of any of Customer’s obligations or liabilities under any such prior agreements with Cambria, including, without limitation, outstanding payment obligations. There are no warranties, representations or agreements among the parties with respect to subject matter hereof, except as set forth or referred to herein. Except as set forth in this Agreement, this Agreement may not be modified, altered or amended except in a writing that is duly signed by the parties hereto. Any other terms and conditions supplied by or through Customer or its contractors (e.g., terms contained on a purchase order) or otherwise, except for confirmed Product descriptions and quantities expressly set forth in a confirmed Order, shall be of no force or effect and are superseded by this Agreement.
14. Force Majeure.Neither party shall be responsible for delays or failures of performance resulting from acts beyond the reasonable control of such party, except for payment obligations. Such acts shall include, but are not limited to, acts of God, strikes, public internet and private internet connection failures, lockouts, riots, acts of war, acts of terror, epidemics, government regulations superimposed after the Effective Date, fire, communication line failures, power failures, earthquakes and other disasters. In such an event, the delayed party shall give written notice of such event to the other party and shall use reasonable efforts to resume performance.
15. Successors and Assigns.Customer may not assign this Agreement, or any of Customer’s rights or obligations hereunder, without the prior written consent of Cambria. Any attempted assignment in violation of the foregoing shall be null and void. Cambria may assign this Agreement, or any of its rights or obligations hereunder, to an affiliate or in the event of a transfer of all or substantially all of Cambria’s assets or Cambria’s merger or restructuring. All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
16. Equitable Relief.It is recognized that damages in the event of a breach or threatened breach of Sections 4.5, 5, 6.1 and 6.2 above will be difficult, if not impossible, to ascertain. It is therefore agreed that the parties, in addition to, and without limiting, any other remedy or right that each party might have, shall have the right to seek an injunction issued by a court of competent jurisdiction, enjoining a party from violating the provisions of this Agreement. This Section 16 shall not limit any remedies otherwise available to the parties.
17. Miscellaneous.Section and subsection headings are not to be considered part of this Agreement. They are included solely for convenience and not intended to be full or accurate descriptions of the content hereof. Subject to Sections 8.1 and 8.2 above, nothing in this Agreement is intended to confer upon any person other than the parties hereto and any third party beneficiaries identified herein, and their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement. The following Sections shall survive the termination of this Agreement: Sections 1.2 (first sentence), 2.2, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9 (last sentence), 3.3, 4.1, 4.2, 4.3, 4.4, 4.6, 5 through 8.2, and 9 through 17. The PSA may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Each of the parties hereto have been represented by independent legal counsel or afforded the opportunity of representation by independent legal counsel. Therefore, no provision of this Agreement, including any amendment or addendum hereto, shall be construed against the party who drafted this Agreement. Should any provision of this Agreement be held invalid or unenforceable, such invalidity will not invalidate the whole of this Agreement, but rather that invalid provision will be amended to achieve as nearly as possible the same effect as the original provision and the remainder of this Agreement will remain in full force and effect. No waiver of any provision of this Agreement nor consent to any departure herefrom shall in any event be effective unless the same shall be in writing and signed by the waiving party, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
Last Updated: November 29, 2021