1. Applicability. These Terms and Conditions of Sale (“Terms”), apply to all sales of product and related services (“Goods”) by KYADTA Building Supplies, LLC, (“Seller”) to the buyer of such Goods (“Buyer”) who has notice of these terms, however gained, including the use of Seller’s website, with these Terms being set forth at https://kyadta.com/terms-and-conditions/. These Terms,
together with those contained in any quotation, estimate or sales contract of Seller (“Sale Contract”), constitute the entire agreement (the “Agreement”) between the parties regarding the Goods, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. To the extent Buyer’s purchase order or any other statement of Buyer contains any terms or conditions in addition to or different from the terms of this Agreement, such terms and conditions are hereby rejected by Seller and hereby waived by Buyer and such terms and conditions shall not affect this Agreement nor be binding upon Seller absent an express written statement by Seller to the contrary. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party. Seller’s fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Buyer’s written acknowledgment of a Sale Contract or commencement of performance, including Buyer’s use of or payment for any Goods provided by Seller, will constitute acceptance of the terms and conditions of this Agreement.
2. Noncancellable. All Sale Contracts are noncancellable by Buyer and any payments made thereunder are nonrefundable.
3. Shipping and Delivery. (a) The Goods will be delivered within a reasonable time after Seller’s receipt of Buyer’s signed or approved Sale Contract, subject to availability of finished Goods. Any delivery date set forth in the Sale Contract is an estimate only and is not guaranteed by Seller. Seller shall not be liable for any damage or losses due to delayed delivery. (b) Unless otherwise agreed in writing by the parties, Seller shall, using Seller’s standard methods for packaging and shipping of such Goods, deliver the Goods to Buyer’s address listed in the Sale Contract (the “Delivery Point”), with delivery being Free on Board (FOB) at the Delivery Point, and Buyer shall take delivery of the Goods immediately upon delivery of the Goods to the Delivery Point. Buyer shall be responsible for all loading and unloading of the Goods at the Delivery Point, for all loading and unloading costs, and for providing equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. (c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Goods shipped whether such shipment is in whole or partial fulfillment of the Sale Contract. (d) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations,the (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).
4. Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the Price (defined below) of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Iowa Uniform Commercial Code.
5. Inspection and Acceptance. (a) Buyer shall promptly inspect the Goods upon delivery at the Delivery Point and notify Seller within a reasonable time, which shall be no more than two (2) hours after delivery of the Goods (“Inspection Period”), of any discrepancies in quantity or other failures to conform to this Agreement. Buyer will be deemed to have irrevocably accepted the Goods unless it notifies Seller in writing of any failure to delivery or Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller.
(b) If Seller delivers to Buyer a quantity of Goods of up to twenty percent (20%) more or less than the quantity set forth in the Sale Contract, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods at the Prices set forth in the Sale Contract, adjusted pro rata. The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within the Inspection Period. Any liability of Seller for nondelivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice regarding such Goods to reflect the actual quantity delivered. The remedies set forth in this paragraph are Buyer’s exclusive remedies for non-delivery of the Goods.
(c) “Nonconforming Goods” means only the following: (i) the product shipped is different than the Goods identified in the Sale Contract; or (ii) the label or packaging of the Goods incorrectly identifies its contents. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, replace such Nonconforming Goods with conforming Goods, or credit or Page 2 (Rev. 8-2025) refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller at the address to be provided by Seller upon request. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment ofNonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point. The remedies set forth in this Section 5(c) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except
6. Price. (a) Unless otherwise set forth in the Sale Contract, prices in effect at the time of delivery will apply (“Prices” or collectively,the “Price”). (b) Except to the extent set forth within the Sales Contract, all Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer, with Buyer being responsible for all such charges, costs, and taxes; provided that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets. Buyer shall provideSeller with a currently valid exemption for all sales claimed tax exempt. (c) Except as otherwise expressly noted in the Sale Contract, all Prices include freight and shipping/transportation costs. (d) Prices, including quoted prices and accepted orders, are subject to revision by Seller at any time to adjust for increases in Seller’s costs, including due to the costs of raw material, costs to purchase the Goods, transportation costs, changes in laws or regulations, and changes in governmental fees and taxes (including duties and tariffs).
7. Payment Terms. (a) Unless provided otherwise in the Sale Contract, payment of the Price, and any other amounts incurred by Seller on behalf of Buyer, shall be due in full on receipt of Seller’s invoice. (b) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise. (c) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month (18% per annum) or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments or in otherwise enforcing this Agreement, including, without limitation, attorneys’ fees, court costs, and expert/consultant costs and including all attorney fees and costs incurred pre-litigation/arbitration, on appeal, and in post-judgment execution efforts. In addition to all other remedies available under this Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), if in Seller’s sole judgment, Buyer’s financial condition or any other circumstance causes Seller to be insecure with respect to Buyer’s performance of any obligation under this Agreement, Seller may accelerate and demand immediate payment of any amounts owed Seller, suspend performance, cancel a Sale Contract, or require cash payment or satisfactory security before shipment
8. Manufacturer’s Warranty Only.
(a) Seller is a mere supplier/distributor of the Goods and does not manufacture any of the Goods. Instead, all Goods are wholly manufactured by a third party (the “Manufacturer”). As such, all express and implied warranties provided by the Manufacturer of the Goods to Seller are hereby assigned from Seller to Buyer. OTHER THAN THE FOREGOING ASSIGNMENT OF APPLICABLE WARRANTIES, THE GOODS ARE PROVIDED “AS IS” AND SELLER DISCLAIMS ALL WARRANTIES OF EVERY KIND,INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS AND ANY OTHER WARRANTIES IMPLIED IN LAW OR OTHERWISE WITH RESPECT TO THE GOODS. BUYER ACKNOWLEDGES AND AGREES THAT SELLER IS HEREBY RELEASED FROM ANY AND ALL WARRANTIES FOR THE GOODS, AND SELLER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES, LIABILITIES,
CLAIMS OR CAUSES OF ACTION ARISING OUT OF THE MAN
(a) Seller is a mere supplier/distributor of the Goods and does not manufacture any of the Goods. Instead, all Goods are wholly manufactured by a third party (the “Manufacturer”). As such, all express and implied warranties provided by the Manufacturer of the Goods to Seller are hereby assigned from Seller to Buyer. OTHER THAN THE FOREGOING ASSIGNMENT OF APPLICABLE WARRANTIES, THE GOODS ARE PROVIDED “AS IS” AND SELLER DISCLAIMS ALL WARRANTIES OF EVERY KIND,INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS AND ANY OTHER WARRANTIES IMPLIED IN LAW OR OTHERWISE WITH RESPECT TO THE GOODS. BUYER ACKNOWLEDGES AND AGREES THAT SELLER IS HEREBY RELEASED FROM ANY AND ALL WARRANTIES FOR THE GOODS, AND SELLER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES, LIABILITIES, CLAIMS OR CAUSES OF ACTION ARISING OUT OF THE MANUFACTURER’S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO BUYER WITH RESPECT TO THE GOODS
(a) Seller is a mere supplier/distributor of the Goods and does not manufacture any of the Goods. Instead, all Goods are wholly manufactured by a third party (the “Manufacturer”). As such, all express and implied warranties provided by the Manufacturer of the Goods to Seller are hereby assigned from Seller to Buyer. OTHER THAN THE FOREGOING ASSIGNMENT OF APPLICABLE WARRANTIES, THE GOODS ARE PROVIDED “AS IS” AND SELLER DISCLAIMS ALL WARRANTIES OF EVERY KIND,INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS AND ANY OTHER WARRANTIES IMPLIED IN LAW OR OTHERWISE WITH RESPECT TO THE GOODS. BUYER ACKNOWLEDGES AND AGREES THAT SELLER IS HEREBY RELEASED FROM ANY AND ALL WARRANTIES FOR THE GOODS, AND SELLER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES, LIABILITIES, CLAIMS OR CAUSES OF ACTION ARISING OUT OF THE MANUFACTURER’S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO BUYER WITH RESPECT TO THE GOODS
(b) Seller shall use reasonable efforts to assist Buyer in making any valid warranty claims with the Manufacturer of the Goods provided: (i) Buyer gives written notice of the defect, reasonably described, to Seller within three (3) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Buyer does not make any further use of such Goods after giving such notice; and (iii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to the address provided by Seller at Buyer’s cost for the examination to take place.
(c) Buyer’s sole and exclusive remedies with respect to any breach of the Manufacturer’s warranties are as provided in, and subject to the terms and conditions (including the warranty period) of, the Manufacturer’s warranties. No repair or replacement of, or refund with respect to, any Goods due to a breach of the Manufacturer’s warranties will be performed or issued by Seller unless and until permitted by the Manufacturer’s warranties.
(d) No employee or representative of Seller and no other person is authorized to amend or supplement this warranty or the associated remedies in any way or to grant any other warranty or remedy related to the Goods.
9. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER, OR SELLER’S OWNERS, OFFICERS, OR AGENTS, BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF Page 3 (Rev. 8-2025)WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) NOTWITHSTANDING ANY TERMS HEREIN, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SELLER, AND SELLER’S OWNERS, OFFICERS, AND AGENTS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE GOODS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY BUYER TO SELLER UNDER THE SALE CONTRACT FOR THE GOODS IN RESPECT OF WHICH THE CLAIM IS MADE
10. Termination. In addition to any remedies that may be provided under the Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for three (3) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of the Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
11. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
13. Non-Solicitation/Non-Recruitment of Employees. During the term of this Agreement and for a period of 12 months following its termination or from Buyer’s final purchase from Seller, whichever is later, Buyer shall not, without Seller’s prior written consent, directly or indirectly solicit, entice, employ, or offer employment to any employee of Seller whom Buyer has directly interacted with in connection with this Agreement or any purchase from Seller (“Restricted Employee”). For avoidance of doubt, this restriction shall not apply to general advertising not specifically directed at any Restricted Employee. Buyer acknowledges by accepting this Agreement that, by way of this provision, Seller has informed Buyer that Restricted Employees may have certain restrictive covenant or other obligations to Seller. This provision shall be enforced to the maximum extent allowed by law. Therefore, if a final, non-appealable judgment of a court or tribunal of competent jurisdiction (“Judicial Authority”) determines that any part of this restriction is invalid or unenforceable, the parties agree that: (i) such provisions shall be rendered invalid, unenforceable, or void only to the extent that such final, non-appealable determination of such Judicial Authority finds such provision unreasonable or otherwise unenforceable; and (ii) the court or tribunal (or arbitrator) making the determination of invalidity or unenforceability will have the power to reduce the scope, duration, or geographic area or the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision. This Agreement will be deemed amended and enforceable within the jurisdiction of such Judicial Authority as so modified after the expiration of the time within which the judgment may be appealed and this Agreement shall remain in full force and effect, as originally drafted, in all other jurisdictions. This Section is reasonable and necessary to protect and preserve Seller’s legitimate business interests and to prevent any unfair advantage conferred on Buyer.
15. Indemnification. Buyer shall indemnify, protect, defend (at Buyer’s expense and with counsel reasonably acceptable to Seller), and hold harmless the Seller and its respective affiliate companies, officers, employees, subcontractors, suppliers, and other agents (“Indemnified Parties”), from and against all claims, losses, causes of actions, judgments, attorneys’ fees, costs, compensatory damages, punitive damages, and other damages regarding any personal injury, death, or property damage (hereinafter referred to together as “Claims”), to the extent the Claims arise from any negligent or intentional/willful act, misconduct or inaction/omission; any breach or default of this Agreement; any breach of any other duty or obligation; or any other violation of law by Buyer and/or its agents and to the extent the Claims are not the sole result of the negligence of Seller.
16. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
17. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever
18. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
19. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Iowa without giving effect to any choice or conflict of law provision or rule (whether of the State of Iowa or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Iowa. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods (CISG) do not apply to this Agreement.
20. Submission to Jurisdiction. All claims, controversies, and disputes arising out of or relating to this Agreement or the Goods shall be subject to arbitration in Des Moines, Iowa. The arbitration shall be administered by the American Arbitration Association in accordance with its Construction Industry Arbitration Rules in effect on the Effective Date. The award rendered by the arbitrator(s) shall be final, and judgment may be entered upon it in accordance with applicable law. Notwithstanding the foregoing, Seller, in its sole discretion, may bring its claim(s), including third-party claims or claims for enforcement of Buyer’s non-solicitation/non-recruitment obligations under Section 13, against Buyer in the Iowa district court located in Polk County, with a judge, and not a jury, presiding over such claim. Both parties knowingly and voluntarily waive all right to trial by jury in any action relating to the Agreement or Goods.
21. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sale Contract or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section
22. Interpretation. (a) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. (b) Each party has entered into this Agreement knowingly and voluntarily and has had theopportunity to play a substantive role in drafting or revising this Agreement; as such, the parties agree that no rule of construction shallbe applied that would result in having this Agreement interpreted against any party.
23. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Limitation of Liability, Compliance with Laws, Confidential Information, Non-Solicitation/Non-Recruitment of Employees, Governing Law, Submission to Jurisdiction, and Survival.
