TERMS AND CONDITIONS
The following Terms and Conditions, along with the terms, conditions and information on the other side of
this Application, and all statements and invoices regarding and reflecting purchases from time to time, are a
part of the contract between the parties regarding the credit account (the “Account”) for which Customer is
applying; provided that Encore is not required to extend credit to Customer merely because Customer
completed this Application (as used herein, the term “Application” includes these Terms and Conditions, all
terms, conditions and information in the “Guaranty” section below, and all terms, conditions and information
on the reverse side hereof). This Application is subject to approval based on criteria determined by Encore in
its sole discretion, subject to applicable law. Customer warrants and represents that all of the information on
the Application is true and correct, is not presented in a misleading way, and no unfavorable information has
been omitted. Customer acknowledges that Encore will acquire credit information regarding Customer from
time to time, and check references, and Customer hereby gives Encore full permission to do so, both now
and for so long as any amounts are owed to Encore, and Customer releases any and all claims for breach of
contract, invasion of privacy, or other statutory, common law or other claims regarding Encore’s taking such
action. Any credit limit or other restriction on the maximum amount of credit Encore will extend to Customer,
whether appearing anywhere on this Application or otherwise from time to time, is solely for Encore’s
benefit, is not a limitation of Customer’s liability, and Customer will be responsible for all charges to the
Account and all other amounts owed pursuant to this Application regardless of such information. This
Application is given, and if Encore agrees to open the Account for Customer, the contract will be deemed
made, in the State of Arkansas; the contract and Account terms will be construed and interpreted according
to Arkansas law; Customer and all persons signing the Application will be deemed to have consented to the
personal jurisdiction of all Arkansas state and federal courts; and any and all court proceedings or other
actions to interpret or enforce this Application, or otherwise pertaining to the services, products, other
materials or debts, or to transactions between Customer and Encore shall be brought in Arkansas; provided
that notwithstanding the foregoing, any matter involving foreclosure of any lien, mortgage, or other interest
in any real property or improvements may be brought in the jurisdiction where the property is located, and
all matters ancillary or reasonably related thereto may also be brought in such jurisdiction. Customer shall
provide written notice to Encore immediately upon any change in the name, address or other information
provided by or on behalf of Customer in this Application. It is Customer’s responsibility to ensure that
charges made to the Account and delivered to a jobsite are for that job and are actually used at that job and
none other. Customer will indemnify Encore and hold Encore harmless for all damages and losses of any
kind regarding items charged to a particular job but which are not used at that job. Although Encore offers
delivery service for some items, if Customer desires or requires a signed delivery ticket it is Customer’s
responsibility to have the proper person at the jobsite at the time of delivery. Encore has no obligation to
obtain signed delivery tickets. Unless prior written approval is obtained by Encore, at no time shall more than
$1,00 be charged to the Account unless such charges are for materials actually used for the construction of
or improvement to real property owned by Customer. All charges to the Account are “Net 15th, meaning all
amounts charged to the Account in a calendar month are due, payable and owing on or before the 15th day
following the date the statement or other bill showing the charge is mailed to Customer. The Account may
be considered past due on the next day, the 15th day thereafter and finance charges will accrue on such
past due balances at the maximum rate allowed by law.Payments on the Account shall be made to Encore
at the place of purchase or such other places as Encore designates from time to time. Unless Customer
specifically requests clearly in writing for Encore to apply payments to certain jobs, invoices or statements,
Encore shall have the sole right and discretion to apply payments to the Account as Encore may deem
necessary or desirable, including without limitation to payment of any charges and/or fees before any other
amount, and payment of non-lienable amounts before lieanable amounts. Encore may accept late or partial
payments on one or more occasions without being obligated to do so in the future. Unless Encore specifically
agrees otherwise in a separate writing that is applicable to the specific matter for which payment is
made, under no circumstances whatsoever shall Encore be bound by, nor shall Encore lose any rights to full
payment, nor shall Customer be released from any liability on the Account, for any payments marked
“payment in full,” “final settlement,” or any similar language or restrictive endorsement. Each and every
month which Encore mails statements and/or invoices to Customer, Customer agrees to immediately review
such document(s) in order to determine whether there have been any charges to the Account which
Customer believes to be: (i) inaccurate in some manner; (ii) erroneously charged to Customer’s Account; or
(iii) otherwise wrong or erroneous. For simplicity purposes items (i) through (ii) in the previous sentence are
referred to as “Disputed Charges.” Customer shall notify Encore in writing to the address referenced below
within sixty days of the date on which the Disputed Charge first appeared, shall designate which charges
are Disputed Charges, and shall cooperate with Encore’s investigation of them. All charges to the Account
which are believed to be Disputed Charges must be designated as such by Customer in writing and received
by Encore within sixty days of the date of the first bill on which the Disputed Charge appeared.
Otherwise Customer will be deemed to have waived any and all issues or defenses regarding whether a
charge was unauthorized, the charge will be conclusively deemed authorized and desired by Customer, and
Customer will be responsible for it. Customer’s Disputed Charge notification shall be sent to the following
address: Encore Performance, LLC, Attn: Manager, or such other address as Encore may designate in
writing from time to time. Encore may assess additional reasonable charges to the Account for requests or
matters which are not within the normal scope business, such as without limitation: charges for account
research; extra bookkeeping; additional copies of invoices, statements, delivery tickets, etc. A returned or
“NSF” check fee will be assessed to the Customer and Account in the amount of $25.00 or the maximum
amount allowed by law, whichever is less. The fee for mail returned because of no forwarding or incorrect
address is $5.00 per month (excluding data input error by Encore). Encore shall at all times have the right
to assess a maintenance fee of $10.00 per month for each month after 90 days of inactivity on the Account.
Return of special order or fabricated items will not be credited. Normally stocked materials which are
returned must be in original packaging, not damaged or destroyed, and otherwise in a resalable condition as
determined by Encore in its reasonable discretion, and returned to or picked up by Encore within 45 days
from the date of purchase along with receipt or other proof of purchase from Encore, and will be subject to
Encore’s restocking charges in effect at the time. Encore may, but is not required to, issue credit on any
return that does not comply with the foregoing in such an amount or on such terms as Encore may
determine in its sole discretion. Except for the foregoing, all sales are final. Customer’s salesperson(s) from
Encore from time to time shall at all times be authorized (but not required to) issue pick up orders for return
and credit of materials without Customer direction in order to prevent a good-faith belief of possible loss or
damage of material. Any credits given or returns accepted by Encore are subject to reversal by Encore
within a reasonable time if Encore discovers that the return does not comply with the foregoing conditions.
Encore may at its discretion determine whether any credit given shall be cash, credit to the Account, or
other credit or concession to Customer.
DISCLAIMER OF WARRANTIES: ALL MATERIALS, PRODUCTS, SERVICES AND OTHER ITEMS SHALL AT ALL
TIMES BE SOLD “AS-IS,” WITH ALL FAULTS, AND WITHOUT ANY OTHER WARRANTIES OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, AND ALL SUCH WARRANTIES WHICH WOULD OTHERWISE BE APPLICABLE ARE HEREBY
EXCLUDED, INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR
PARTICULAR PURPOSES. NOTWITHSTANDING THE FOREGOING, CUSTOMER SHALL HAVE ALL
MANUFACTURER’S WARRANTIES FOR THE TIMES AND ON THE TERMS PROVIDED BY THE MANUFACTURER,
BUT CUSTOMER’S SOLE REMEDY SHALL BE AGAINST THE MANUFACTURER UNDER ITS WARRANTY. IN ANY
EVENT AND WITHOUT LIMITING THE FOREGOING, THE MAXIMUM LIMIT OF ENCORE’S LIABILITY FOR DEFECTIVE
OR DEFICIENT PRODUCT, MATERIAL OR LABOR OF ANY KIND SHALL BE THE LESSER OF: (I) REFUND OF
THE CUSTOMER’S MONEY FOR THE ITEM OR SERVICE ALLEGED TO BE DEFECTIVE, OR (II) ENCORE’S COST TO
REPLACE OR REMEDY THE ALLEGED DEFECT, AND ENCORE SHALLBE ENTITLED TO DETERMINE WHICH OF
(OR WHETHER EITHER OF) THE FOREGOING IS APPLICABLE. IN NO EVENT SHALL ENCORE BE LIABLE FOR,
AND CUSTOMER HEREBY RELEASES ENCORE AND SHALL INDEMNIFY AND HOLD ENCORE HARMLESS FROM,
ANY AND ALL INCIDENTAL, CONSEQUENTIAL, AND EXEMPLARY DAMAGES OF ANY KIND, AS WELL AS ALL
OTHER COSTS (WHICH INCLUDES ATTORNEY’S FEES) OR DAMAGES CAUSED, WHETHER IN WHOLE OR IN
PART, BY ANY ACTS, FACTORS OR CIRCUMSTANCES BEYOND ENCORE’S REASONABLE CONTROL, INCLUDING
WITHOUT LIMITATION FIRE, FLOOD, WEATHER, LABOR PROBLEMS, SHORTAGE OF MERCHANDISE, OR ANY
OTHER UNFORESEEN CAUSE, CONDITION OR CIRCUMSTANCE.
Encore’s delay or failure to exercise any of its rights or remedies in this Application, or that are applicable
to the Account or available to Encore by law, shall not waive, diminish or otherwise affect Encore’s rights
and remedies, and Encore may at its discretion exercise all such rights and remedies thereafter. If any
term or condition of this Application is found by a court of competent jurisdiction to be invalid or unenforceable,
it shall be considered severed from the remaining provisions of this Application, and none of the other
provisions shall be affected thereby. Other terms and conditions may apply to the Account as set forth on
invoices, delivery tickets, statements, quotes, and other Encore literature; provided, that any document
marked “quote,” “estimate,” “take off,” or which uses similar language or wording, or can be reasonably
construed as being a “quote” or “estimate” shall not be a guarantee of pricing or of quantity of materials or
supplies needed. If Customer desires specific guaranteed pricing for any material, quantity, item or service,
Customer shall notify Encore accordingly and shall obtain documentation signed by a representative of Encore
which specifically says it is a guarantee of pricing or quantity. At no time shall Encore be held responsible
for any estimation of quantity of material, supplies or labor necessary to complete any structure, any
part thereof, or any project of any kind. Encore reserves the right to modify the terms and conditions of the
Account at its discretion, provided that written notice is mailed or otherwise communicated to Customer,
and upon such mailing or other communication, such terms shall become effective. Customer
acknowledges that Encore’s rights as set forth in the previous sentence are reasonable since Customer can
avoid having the new or changed terms be applicable by simply not charging anything further on the
Account. Encore shall at all times have the right to refuse any further purchases on or to the Account, and
to suspend, revoke or otherwise terminate Customer’s Account at any time and for any reason, but no such
termination shall affect Customer’s liability up to the termination.
Without prejudice to or limitation of any other lien rights, Customer hereby grants to Encore, and Encore
shall at all times have, a security interest in all products, materials and other items charged to the Account,
even if they become fixtures under applicable law, and Customer hereby authorizes Encore to file such UCC
financing statements, continuation statements, fixture filings, and other documents as Encore may deem
necessary or advisable from time to time. Said security interest shall automatically expire upon receipt and
to the extent of payment therefore. The foregoing security interest is in addition to, and does not limit in any
way, any other rights Encore may have, including without limitation all rights to a materialman’s or other
lien.
Default by Customer or Guarantor of any of the terms and conditions of this Application or the Account
from time to time will result in all amounts owed or hereafter owed on the Account to become immediately
due and payable without notice. Encore shall be entitled to exercise all remedies set forth herein and
allowed by applicable law, at its discretion, it being understood that all such remedies are cumulative.
Marshalling of assets, presentment, notice of non-payment, protest, notice of protest, notice of intent to
accelerate, impairment of recourse, demand for payment, notice of dishonor, right of redemption,
homestead and trial by jury are all hereby waived.Customer and all Guarantors shall be responsible for all
of Encore’s attorney’s fees, costs, and other costs and fees incurred in connection with the Account or any
amounts owed or alleged to be owed on the Account, whether or not suit is filed. Neither Customer nor any
Guarantor shall be entitled to assign this Application, in whole or in part, or the rights or obligations of the
Account, at any time. Encore may assign its rights under the Application and the Account, in whole or in part,
at any time without the consent of or notice to anyone. Notwithstanding anything in this Application to the
contrary, the terms of this Application shall not be enforceable against Encore until Encore has approved
Customer’s credit and charges are made to the Account.
CONTINUING GUARANTY
The following terms supplement those set forth above and on the reverse side of this Application. Each
person who signed the Application in the Guaranty section is a “Guarantor” for purposes of this Application,
and the obligations of each Guarantor under this Guaranty are independent of and separate from any
obligations of Customer and any other Guarantor. Guarantor’s liability hereunder shall at all times be irrevocable,
absolute, unconditional and continuing, and shall not be affected by any circumstance which might
constitute a discharge of a surety or guarantor, other than a“Permitted Defense,” which are: (i) payment of
the money for which Guarantor is alleged to be responsible, (ii) accord and satisfaction. Without limiting the
foregoing,Guarantor hereby waives any and all rights, defenses and benefits limiting or exonerating Guarantor’s
liability (other than Permitted Defenses), including but not limited to: (i) any right of offset in favor
of any other person or entity; (ii) the rights and defenses of an “accommodation party”, under applicable
law; (iii) the incapacity or lack of authority by Customer, any other guarantor or any other person or entity
to execute the Application, the Account, or any documents in connection with either; (iv) all rights of presentment
for payment, notice of non-payment, protest, notice of protest, notice of intent to accelerate, notice of
dishonor, acceptance, notice of acceptance, and demand;and (v) whether any charges to the Account were
unauthorized. Guarantor’s liability shall not be affected by any of the following, which may occur without
notice to or consent of Guarantor: (ii) any exercise or enforcement of any remedy, or any failure to exercise
or enforce any remedy Encore may have against Customer, any other guarantor, or any other person or entity;
(ii) the existence of any dispute or litigation among Encore, Customer, Guarantor, any other guarantor,
or any other person or entity; (iii) the partial payment by Customer, any other guarantor or any other person
or entity; (iv) any acceptance of late payment; (v) any insolvency, bankruptcy, reorganization, assignment
for the benefit of creditors, liquidation, winding up, divorce, death, or dissolution of Customer, any other
guarantor, or any other person or entity; (vi) any merger, reorganization, or consolidation of Customer or
any other person or entity; (vii) the sale of all or substantially all of the assets of Customer or any other
person or entity; (viii) the transfer of any of rights under the Application (including without limitation all
guaranty provisions); (ix) any extension, renewal, rescission, waiver, amendment, or modification of any
provision of any part of this Application or the Account; (x) increasing or decreasing Customer’s available
credit or otherwise allowing charges of any amount whatsoever on the Account; (xi) settling, releasing,
compromising, collecting or otherwise liquidating any amount due to Encore; (xii) marshaling of assets in
favor of Customer, any guarantor, or any other person or entity; (xiii) any act by Encore, Customer, any
guarantor, or any other person or entity which would discharge an obligation to pay money under a simple
contract; (xiv) the lack, absence, or inadequacy of consideration; (xiv) entering into promissory notes,
mortgages, or other contracts with Customer or any other person or entity for amounts owed hereunder
without such actions constituting a novation of any amounts owed hereunder. Without limiting the
foregoing, Guarantor hereby consents to and agrees that any of the following actions may be taken by
Encore without notice to Guarantor and without the requirement of any amendment to this Guaranty: (i)
the amendment or modification in any respect of this Application or the terms of the Account; (ii)
alternation, deviation or any other change or difference of the time, manner or place of any payment of any
amount owed to Encore; (iii) the extension or waiver of the time for the performance of any of Customer’s
obligations to Encore; (iv) discharge or release, in whole or in part, of Customer, any other guarantor, or any
other person or entity from liability hereunder; (v) discharge, release, exchange, or sale, in whole or in part,
of any collateral; (vi) compromise, settlement, or offset of any liability of Customer or any other person or
entity; (vii) transfer of any of Encore’s rights hereunder. This Guaranty is an absolute guarantee of payment
and not of collection, and shall be a continuing guaranty and shall continue in full force and effect until
revoked in writing, signed by Guarantor, which revocation shall only be effective upon the date of delivery
by certified mail, restricted delivery, to the Chief Financial Officer of Encore at the following address: P.O.
Box 6280, Springdale, AR 72762, or such other address as Encore may designate in writing from time to
time; provided that such revocation shall in no way affect Guarantor’s liability hereunder for charges made
(or other liability) prior to revocation delivery date. This Guaranty section is a part of the overall Application
and all other terms set forth in this Application (for example but without limitation – consent to jurisdiction
in Arkansas, severability, etc.) are applicable to this Guaranty section except to the extent that they conflict
with anything specifically set forth in this Guaranty section.