Vendor Terms & Conditions

All sales of products and services (“Products / Services”) by a vendor (“Vendor”) to or on behalf of Gypsum Management and Supply, Inc. and each of its subsidiaries and affiliates (“Business”) (each of the Vendor and the Business, a “Party,” and collectively, the “Parties”), are subject to these standard Vendor Terms and Conditions (“Terms”), and the Terms are incorporated into any verbal or written agreement (the “Agreement”) between the Parties relating to the Products/Services.  The Terms supersede all prior or contemporaneous understanding, agreements, and communications between the parties relating to the matters covered herein. All terms included on any Vendor provided invoice, statement, contract, purchase order, or other sale document (“Vendor Sale Document”) are specifically excluded and in the event of any conflict between specific provisions of the Vendor Sale Document and the terms hereof, the Terms govern.

Force Majeure. Business will not be liable for any failure or delay in performing its obligations hereunder during any period in which such performance is prevented or delayed by causes beyond its reasonable control, including without limitation, an act of God; flood or other severe weather; war; embargo; fire or other casualty; any act of terrorism or sabotage; a civil riot; strikes or labor shortages; pandemics or other public health crises; or product or material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the time for Business’s performance will be extended reasonably and the Parties will adjust all affected dates accordingly.

Termination for Convenience. Business may terminate the Agreement with Vendor for Business’s convenience, in whole or in part, at any time prior to shipment or performance of services by (written or electronic) notice to Vendor. Upon receipt of such termination notice, Vendor shall promptly comply with the directions contained in such notice and shall, as required, (a) take action necessary to terminate the work as provided in the notice, minimizing costs and liabilities for the terminated work, and (b) continue the performance of any part of the work not terminated by Business.

Termination for Breach. If Vendor fails to comply with these Terms, Business may, in addition to all other remedies available, terminate or restrict any purchase or payment immediately upon notice to Vendor. Vendor certifies that it is solvent and that it will advise Business immediately if it becomes insolvent.

Code of Conduct. To the extent applicable, Vendor warrants that the Products and Services are produced in compliance with (i) all applicable requirements of the Fair Labor Standards Act, as amended, including Sections 18 and 28 thereof, and of regulations and orders of the United States Department of Labor issued under Section 6 thereof; (ii) the Occupational Safety and Health Act; (iii) all federal civil rights, equal opportunity, discrimination, harassment, retaliation, and other workplace laws, including but not limited to Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, as amended, and the Family and Medical Leave Act, as amended; (iv) the Immigration Reform and Control Act and other applicable immigration laws; (v) related state and local laws; and (vi) the workers’ compensation laws. Vendor represents and warrants that Vendor, its company personnel and its contractors are not engaged in and will not engage in any labor practice in violation of the laws or regulations of the country of manufacture or assembly of the products including unsanitary and/or unsafe labor conditions. If Business determines that Vendor, its company personnel or its contractors have failed to comply with the foregoing, Business will be entitled to immediately terminate Agreement without liability. The Business’ Code of Conduct (the “Code”) is an Integral part of the Agreement, and Vendor, its personnel and its contractors agree to abide by the terms of the Code. The Business Code of Conduct can be found at https://investor.gms.com/corporate-governance/govdocs/default.aspx.

Insurance Requirements. Vendor will maintain at all times while providing Products or Services to Business, at Vendor’s own cost and expense, insurance coverage of the types and in such amounts as described in Exhibit A with a company that has an A.M. Best Co. rating of “A-” or better. The insurance coverage required under the Agreement must be occurrence coverage and maintained by each Vendor for a minimum period of five (5) years following any purchase by Business or, in the case of products being provided by Vendor, as long as the products are still held by Business for resale or use, whichever is longer. Alternatively, claims made coverage is acceptable with automatic five (5) year tail coverage. Vendor will deliver to Business, prior to shipping products or performing services for or on behalf of Business and anytime upon request, a Certificate of Insurance including “Gypsum Management and Supply, Inc. and its subsidiaries, affiliates, parent entities, directors, officers, agents and employees under the Vendors Additional Insured coverage.”

Warranties. Vendor expressly warrants to Business that for the longer of (i) Vendor's standard warranty period and (ii) twelve (12) months from the date of delivery, all goods, services, and materials covered by the Agreement will: (a) for products, be free of defects in workmanship, material and design, and for services, be provided in a professional and workman like manner, in keeping with the highest industry standards for such services, (b) conform to applicable specifications, samples, drawings, designs and other requirements specified by Business (if any), (c) be fit and sufficient for their intended purpose and operate as intended, (d) be merchantable, and (e) be free and clear of any liens, security interests or other encumbrances unknown to Business. The foregoing warranty shall survive Business's inspection, acceptance, use and subsequent sale of all Products and Services covered by the Agreement. Vendor hereby extends to Business any and all warranties received from Vendor's suppliers and agrees to enforce such warranties on Business's behalf. All Vendor warranties shall run to Business, its successors, assigns, customers and users of products sold by Business. Vendor agrees to promptly correct all defects in any all Products and Services covered by the Agreement not conforming to the foregoing warranties or replace such Products or Services, without expense to Business, when notified by Business. In the event of Vendor’s failure to correct or replace such defective or non-conforming Products and/or Services covered by the Agreement, Business may, after reasonable notice to Vendor, make such correction or replacement at Vendor's expense, including seeking another provider and charging Vendor for those Products and/or Services. The foregoing warranties and remedies shall be in addition to any warranties and remedies of additional scope herein or otherwise provided by Vendor to Business or otherwise provided by law, including, but not limited to, any and all warranties and remedies provided in the Uniform Commercial Code as in effect in the applicable State whose laws are chosen by the Parties to govern the Agreement. Payment for all Products and/or Services covered by the Agreement shall not constitute acceptance thereof by Business and such payments shall be deemed to have been made without prejudice to any and all claims Business may have against Vendor.

Indemnification.

1. Vendor will indemnify and hold Business, its affiliates and its and their officers, directors, employees, and agents harmless from and against all suits, proceedings at law or in equity, claims, liabilities, costs, payments and expenses (including attorneys' fees) asserted against Business or incurred by Business, arising out of or in connection with 1) the products or services provided by Vendor, including, without limitation, Business’ purchase, use, shipment, storage, delivery, sale, offering for sale, or other handling of Vendor’s products, 2) Vendor’s actual or alleged breach of any of the representations, warranties, guarantees or other terms and conditions contained herein or in the Agreement, or 3) any claim for damages to property or injuries to persons or fines or penalties incurred as a result of or caused by the acts or omissions of Vendor’s employees or agents or Vendor’s products or services.
2. In addition to the foregoing, if any of Vendor’s products purchased or any part thereof or any services provided by Vendor is alleged or held to constitute infringement, Vendor, at its own expense, will, at Business election (i) procure for Business, its successors, assigns, and customers the right to continue using such products or services, (ii) replace the products with non-infringing items or (iii) only if options (i) and (ii) are impracticable, refund the purchase price for the products and pay all related expenses.
3. Business shall indemnify, defend and hold Vendor harmless from liability resulting from Business’s breach of this agreement, or any acts or omissions of Business or its employees, but only to the extent such liability is not caused by any acts or omissions of Vendor. Vendor will hold harmless Business from and against any claims made by any of Vendor’s employees, contractors or representatives working in the course and scope of their employment by Vendor or provision of services to Vendor while at any Business location and expressly waives any insulation from liability or immunity from suit with respect to injuries to Vendor’s employees that may be extended to Vendor under any applicable workers’ compensation statute or similar law, unless such claim was the sole and proximate result of the gross negligence and/or willful misconduct of Business. Business will be held harmless from any workers’ compensation liens incurred by such claims. Vendor acknowledges that this provision is a reasonable request from Business in order to give Vendor employees, contractors, and representatives access to Business locations.

Limitation of Liability. In no event will Business’ liability exceed the purchase price of the defective Products and/or Services, and Business will not be liable, whether as a result of breach of contract, warranty, tort (including negligence) or other grounds for special, consequential, incidental or punitive damages, including, but not limited to, loss of profits or revenue, cost of substitute products, facilities or services, downtime costs, delay costs, or claims of customers of Vendor. The term “consequential damages” includes, but is not limited to, cost for labor, loss of anticipated profits, loss of use, loss of revenue, and cost of capital. Nothing contained in the Agreement shall limit the liability of the Vendor.

Costs. In the event Business prevails in any legal action brought as a result of the commercial relationship with Vendor, Vendor will pay Business’s costs and expenses of collection, suit, or other action, including, but not limited to, all actual attorney’s and paralegal’s fees, and collection costs, incurred pre suit, through trial, on appeal, and in any administrative or bankruptcy proceeding. Any cause of action that Business has against Vendor may be assigned without Vendor’s consent to an affiliate of Business. Vendor shall not assign its rights, obligations, or claims under the Agreement, any Vendor Sale Document or these Terms or any contract or agreement with Business without the prior written consent of Business.

Confidentiality. Both Business and Vendor acknowledge that each party may from time to time possess Confidential Information of the other party. As used herein, "Confidential Information" means all information (whether oral, observed, or written) that is marked or treated as confidential, restricted, or proprietary by the other party, including but not limited to customer information, pricing information, product information, employee information, information regarding business planning and operations, and administrative, financial and marketing activities. Each party will protect Confidential Information of the other party with the same degree of care that it uses in protecting its own confidential information, but not less than reasonable care. Neither party will disclose any Confidential Information to any person except those employees who have a need to know and except as otherwise agreed to in writing by the non-disclosing party. Confidential Information will remain the property of the disclosing party and will only be used for the benefit of the disclosing party. Confidential Information does not include information that the receiving party can prove is: (i) received from a third party having a bona fide right to such information and not under an obligation of confidentiality; (ii) developed independently without reliance on any Confidential Information; (iii) publicly known or readily ascertainable through no wrongful act of the disclosing party, or (iv) required to be disclosed by a court of law, provided the disclosing party notifies the receiving party prior to such disclosure. Both parties will return all Confidential Information contained in a tangible form upon termination of its relationship, or at an earlier time at the other party’s request.  To the extent there is a separate and free-standing non-disclosure or confidentiality agreement between Vendor and Business in effect, this provision will have no effect.

Arbitration.

1. If a dispute arises with respect to the Agreement, the parties shall in good faith attempt to resolve such dispute. Failing resolution by the parties, any controversy arising out of or relating to the Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of the Agreement to arbitrate, shall be determined by arbitration in the state in which Business’ yard or location making the purchase is located before one arbitrator. If Business has more than one yard or location involved in the relationship with Vendor regarding the purchase at issue and such yards or locations are located in more than one state, then the arbitration will be held in the state of Georgia. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (“JAMS Rules”). The parties shall attempt to mutually choose an arbitrator, but in the event the parties do not mutually choose an arbitrator, the arbitrator will be selected pursuant to the JAMS Rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
2. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
3. In any arbitration arising out of or related to the Agreement, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages.
4. In any arbitration arising out of or related to the Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
5. The parties (a) consent to the exclusive jurisdiction of the state and federal courts located in the state in which Business’ yard or location making the purchase is located for all purposes in connection with arbitration, including the entry of judgment on any award; (b) waive any objection to laying of venue in any such court; (c) waive any objection that any such court is an inconvenient forum or does not have jurisdiction over any party; and (d) consent that any process, notice of motion or other application to such courts, and any papers in connection with arbitration, may be served by registered or certified mail, return receipt requested, by personal service, or in such other manner as may be permissible under the rules of the applicable court or arbitration tribunal, provided a reasonable time for appearance is allowed. If Business has more than one yard or location involved in the relationship with Vendor regarding the purchase at issue and such yards or locations are located in more than one state, the parties consent to the exclusive jurisdiction of the state and federal courts located in the state of Georgia.
6. The arbitrator shall have no power to alter or modify any express provision of the Agreement or to render an award that has the effect of altering or modifying any express provision of the Agreement. The arbitrator shall be prohibited from issuing any award providing for multiple or punitive damages. The parties shall pay their own costs and attorneys’ fees associated with the arbitration.
7. Nothing in the Agreement shall preclude either party from seeking injunctive or other equitable relief from any state or federal court of competent jurisdiction located in the state in which Business’ yard or location making the purchase is located in order to avoid irreparable harm pending arbitration and/or to avoid rendering any arbitration award on the merits from becoming ineffectual or unenforceable. If Business has more than one yard or location involved in the relationship with Vendor regarding the purchase at issue and such yards or locations are located in more than one state, either party may seek injunctive or other equitable relief from any state or federal court of competent jurisdiction located in the state of Georgia in order to avoid irreparable harm pending arbitration and/or to avoid rendering any arbitration award on the merits from becoming ineffectual or unenforceable.

Recalls. Vendor shall bear and pay, and shall indemnify Business from and against, any loss, costs or expense associated with any product recall related to any products provided by Vendor (“Product Recall”). Without limiting the foregoing, Vendor shall bear all cost and expense of notifying customers, reporting and liaising with any governmental or safety body, any governmental or safety investigation associated with or leading to a Product Recall, and any of Business’s loss, costs or expenses, including lost profits, associated with any Product Recall. Each Party shall promptly notify the other if it becomes aware that any Product Recall or investigation that may lead to a Product Recall is likely. The Parties shall cooperate and, insofar as necessary or advisable, coordinate their responses and replies to any investigation or Product Recall.

EEO and Notice of Labor Rights. Vendor shall, to the extent they apply, abide by (1) the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a), which prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin and require affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status, or disability; (2) 29 CFR Part 471, Appendix A to Subpart A, and (3) E-Verify.

Privacy.      

1. Definitions.  The following terms shall have the following meanings:
   1. “Business Purpose” means the use of Personal Information for a Service Provider’s operational purposes, including the products or services provided to or on behalf of the Business.
   2. “Personal Information” means information Business (directly or indirectly, including through another party) shares with Vendor, discloses to Vendor, allows Vendor to access, or provides Vendor access to, that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or as “Personal Information” may otherwise be defined by law.
   3. “Processing” means any operation or set of operations that are performed on personal data or on sets of personal data, whether or not by automated means, or as otherwise defined in state (e.g. the California Consumer Privacy Act of 2018 (“CCPA”)) or federal law, as applicable. 
   4. “Sell” means the exchange of Personal Information for monetary consideration, or as otherwise defined in state (e.g. the CCPA) or federal law, as applicable.  
   5. “Service Provider” means a partnership or other for-profit legal entity that Processes Personal Information on behalf of Business, as Vendor.
2. Requirements. If Vendor receives, uses, handles, performs Processing, accesses or stores Personal Information, Vendor agrees that it:
   1. is acting solely as a Service Provider with respect to Personal Information and is performing services for or on behalf of Business;
   2. shall not Sell Personal Information;
   3. shall not collect, retain, use, disclose or otherwise Process Personal Information:
      1. for any purpose (including a commercial purpose) other than for the specific purpose of performing the services, obligations, or actions for the benefit of Business that are specified in the Agreement; or
      2. outside of the direct business relationship between Vendor and Business;
   4. shall comply with all applicable laws and regulations in connection with its receipt, use, handling, Processing, access to and storage of Personal Information (e.g., the CCPA);
   5. shall, upon the request of Business, or as otherwise provided by law, promptly delete any Personal Information from its records and direct any relevant agents, consultants or contractors to delete such Personal Information from their records, unless such action is prohibited by professional obligations, law or regulatory requirement;
   6. shall, when Vendor is able to validate that it obtained the Personal Information solely from the relationship between Vendor and Business, promptly notify Business of any requests with respect to Personal Information received from individuals, including requests to access, delete, or change Personal Information.  Vendor shall use commercially reasonable means to cooperate with and assist Business in responding to and fulfilling such requests, as applicable. This section shall in no way prohibit Vendor from responding to and fulfilling its obligations to the individual under the applicable law; and
   7. shall promptly refer to Business any inquiries received by Vendor regarding the privacy practices of Business.
3. Acknowledge. The Parties acknowledge and agree that Business has no knowledge or reason to believe that Vendor is unable to comply with the provisions of these Terms.

Proposition 65. In compliance with Business’s commitment to providing high quality products that comply with all federal, state and local laws, regulations and ordinances, including California’s Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code § 25249.6 et seq. (“Prop 65”) (collectively, “Laws”), Vendor hereby acknowledges, confirms, agrees to and certifies the following:

1. Any and all goods and materials (including components thereof and all packaging) Vendor manufactures, causes to be manufactured, acquires, or in any way supplies to Business will be manufactured and supplied in compliance with all Laws.
2. Neither Vendor, nor any of Vendor’s subcontractors or suppliers, will in the manufacture or treatment of any goods or materials (including components thereof and all packaging) supplied to Business, use any of the California Prop 65-listed chemicals, such that a Prop 65 warning may be required, unless such goods, materials, components and packaging have a compliant Prop 65 warning affixed to the item.  The Prop 65 list of chemicals is available at https://oehha.ca.gov/proposition-65/proposition-65-list.
3. Vendor further agrees to defend, indemnify and hold Business harmless from any alleged violations of Prop 65 arising from or relating to any goods and materials (including components thereof and all packaging) supplied by Vendor to Business, using counsel reasonably chosen by Business.

Governing Law. These Terms, Vendor’s account, and the business relationship between Business and Vendor will be governed by and construed in accordance with the laws of the state in which Business’ yard or location making the purchase is located without regard to conflicts of laws rules. If Business has more than one yard or location involved in the relationship with Vendor regarding the purchase at issue and such yards or locations are located in more than one state, then these Terms, Vendor’s account, and the business relationship between Business and Vendor will be governed by and construed in accordance with the laws of the state of Georgia without regard to conflicts of laws rules. The Parties agree that any legal action arising under or related to the Agreement, Vendor’s account, and/or the business relationship between Business and Vendor will be brought in the state in which the Business’s yard or location making the purchase is located, and any right to object to such venue or to assert the inconvenience of such forum is hereby waived. If Business has more than one yard or location involved in the relationship with Vendor regarding the purchase at issue and such yards or locations are located in more than one state, the Parties agree that any legal action arising under or related to the Agreement, Vendor’s account, and/or the business relationship between Business and Vendor will be brought in the state of Georgia, and any right to object to such venue or to assert the inconvenience of such forum is hereby waived. THE PARTIES EXPRESSLY WAIVE THE RIGHT TO A JURY TRIAL.

Conflicts. This agreement is limited to these Terms. Any additional or different terms proposed by Vendor in any quotation, purchase order, acknowledgement, or other document are hereby deemed to be material alterations and notice of objection to them is hereby given. These Terms are deemed accepted by Vendor without any such additional, inconsistent, or different terms and conditions, except to the extent expressly and specifically accepted by Business in a writing signed by Vendor. Any such additional or different proposed terms not expressly and specifically accepted by Business will be void. The invalidity or unenforceability of all or part of these Terms will not affect the validity or enforceability of the other terms. The Parties agree to replace any void or unenforceable term with a new term that achieves substantially the same practical and economic effect and is valid and enforceable. Business may delay or waive enforcement of any of its rights under this agreement or applicable law without losing the delayed or waived right or any other right.

Survival. All of the provisions contained herein will survive termination, cancellation, and completed performance of this Agreement as long as necessary to allow the aggrieved Party to fully enforce such clauses.