These Standard Terms and Conditions will apply to all Products provided by Foley Products Company, LLC d/b/a Foley Products Company(“Seller”) to the Customer (“Customer”) named in this quote and to any other purchaser of Products provided by Seller. Products (“Products”) as used herein shall mean an item or items offered for sale by Foley Products Company. The Customer’s signature in the area provided on the Quote is deemed acceptance of these Standard Terms and Conditions for the Job specified on the quote. Customer’s acceptance of any of the Products on this quote shall also be deemed an acceptance of these Standard Terms and Conditions. Seller may require a signed copy of the Quote prior to the manufacture of any Products. Seller hereby rejects any additional or different terms or conditions included in Customer’s acceptance of this Quote or any other instrument or document Customer may provide in responding to this Quote. These Standard Terms and Conditions will continue in full force and effect for this Job until completion of the Job. The only changes to these Standard Terms and Conditions that Seller will accept must be in writing and signed by authorized representatives of Customer and Seller.
Customer and Seller understand and agree that this Quote and any Specifications, Plans, and Designs (collectively “Agreement”) that are provided to Seller and Seller acknowledges that the Products in this Quote can be produced per the Specifications, Plans, and Designs constitute the entire and sole agreement between Customer and Seller for the Job referenced in this Quote. Customer and Seller must agree on all Specifications, Plans and Designs prior to Seller producing the Products in this Quote. Any and all previous oral or written agreements between the parties regarding this Agreement are null and void.
DELIVERY AND ACCEPTANCE:
- Seller will maintain a Delivery Schedule based upon a production and delivery schedule which is mutually agreeable to Seller and Customer.
- Seller shall not be liable to Customer for any failure of Seller to make any delivery hereunder when due, if occasioned by any event beyond Seller’s reasonable control, including without limitation fire, flood, acts of God; acts of, or compliance with the directions of, civil or military authority, including any federal, state, or local agency or authority; wars, riots, pandemics, labor strikes, terrorism, international trade disputes or any other reasonable basis. At Seller’s option, the time for delivery hereunder shall be extended and the deliveries shall be made during the period of such extension.
- The unloading of all Products is the responsibility of the Customer unless so specified in this Quote.
- Customer will provide timely unloading of the Products at the job site and will provide an adequate staging area for the maneuverability of Seller’s delivery truck and the unloading of the Products. A Detention Charge based on the Detention Charge in effect at time of shipment will be added to each invoice for which delivery truck is detained at job site for greater than one and one-half (1.5) hours.
- Customer or any other party selected by Customer will inspect the Products on the delivery truck before unloading. Customer will document acceptance of the Products by signing Seller’s delivery ticket, which signature will be absolute and conclusive evidence that the Products meet the requirements of this Quote and Customer accepts the Products. Customer may reject the Products that fail to meet the requirements of this Quote prior to acceptance and in such case the rejected Products will be returned to Seller at no cost to Customer and replaced.
- Seller will deliver Products as per Delivery Schedule. If Customer does not have Customer representative on job site to receive, then Products will be returned to Seller’s facility and Customer will be charged a delivery charge and restocking fee for the Products delivered but not unloaded.
- Risk of loss and/or damage shall be upon Seller until Customer begins unloading of Products. Risk of loss and/or damage will pass to Customer when Customer begins unloading the Products from the delivering vehicle. Customer then becomes responsible for the placement, blocking, chocking, protection of, and any other necessary actions for the safeguarding of the Products. Customer will defend Seller against all claims for any property damages or personal claims arising from the Products on the job site.
- No lifting devices will be provided by Seller for the unloading of the Products.
- Customer cannot connect any devices to Seller’s delivery trucks for any purpose.
- Seller will deliver Products to as near the desired location as possible on Customer’s job site as is accessible by Seller’s delivery truck. If the truck cannot proceed with the load under the truck’s own power to the desired location, then the Customer must direct the truck to alternate location on job site.
- For all Non-Standard Products in this Quote, Seller will issue an invoice to Customer for the Non-Standard Products sixty (60) days after manufacture of the Products if the Non-Standard Products have not been shipped within sixty (60) days of manufacture. In addition, any Non-Standard Products not shipped within one hundred fifty (150) days after manufacture will be disposed of by Seller and Seller will issue an invoice to Customer for a disposal fee of $400.00 per ton of the tons of Non-standard Products disposed of by Seller. A monthly storage fee of $100.00 per ton will be issued to Customer for all Products remaining on Seller’s yard after sixty (60) days.
- In order for Customer to make any claim against Seller for damages to Products in transit or for any shortage of quantities on a shipment, the Customer must so note the claim on the Seller’s copy of the delivery ticket along with a description of the claim.
- For any Products furnished by Seller that fail to conform to the specifications specified in this Quote at time of delivery, Seller’s sole and exclusive liability shall be to repair, replace at the job site, or upon mutual agreement, to credit Customer’s account for the non-conforming Products. If Seller elects to repair or replace the products, then Seller shall have a reasonable time to make such repair or replacement. Notice of non-conforming Products must be given to Seller immediately upon discovery of the non-conforming Products. Notwithstanding anything else in this Agreement, Customer must give final written notice of any non-conforming Product within thirty (30) days of the delivery of the Product.
- Seller will assess a cancellation charge of the greater of $400.00 or $4.00 per mile for any loads cancelled by Customer after the load leaves Seller’s yard if the cancellation is caused by Customer.
- Customer hereby grants Seller a first priority security interest in all such Products until such time as Seller is paid in full all amounts due under this Agreement. Customer further agrees to execute any and all documents that may be required for Seller to perfect such security interest. Title for Products shall pass to Customer upon payment for the Products by the Customer.
Seller acknowledges and agrees that any assistance or advice that is provided to Customer by Seller is for guidance only and Customer agrees to rely solely on its own architects, technical experts, and engineers. Seller will not bear any liability or responsibility for Customer claims arising from any assistance or technical advice provided to Customer by Seller.
PRICING AND PAYMENT:
- Unless stated otherwise herein, prices for the Products quoted are subject to material availability and shall remain firm for a period of thirty (30) days from the Bid Date of this Quote; thereafter, prices for the Products are subject to change by Seller. If any additional items are added to this Quote, the additional items will be subject to pricing in effect at the time of the additions.
- All prices are FOB Jobsite and are based on full truck load quantities of not less than 40,000 pounds.
- A Minimum Freight Charge per load based on the Minimum Freight Charge in effect at time of shipment will be added to each invoice with a load weight of less than 30,000 pounds.
- Payment terms are Net thirty (30) days from date of invoice with no provision for discounts, delays in installation of Products, Customer’s receipt of payment from third-party, retainage, or disputes between Customer and the Owner of the Job.
- Past due amounts will accrue interest at the rate of eighteen percent (18%) per annum or the maximum rate allowed by law, whichever is less. Should Customer fail to pay when due any amount payable to Seller under the terms of this Agreement, after ten (10) days written notice without cure, Seller may: (a) make demand upon Customer for assurances of payment, including but not limited to, requesting immediate payments of all amounts then due and owing to Seller under this Agreement; and/or requesting payment in advance of delivery of all future amounts to become due under this Agreement; (b) suspend future deliveries; (c) file a claim of lien and, if applicable, a claim on bond; (d) terminate this Agreement; or (e) take such other actions as Seller determines are necessary to secure its right to payment.
- Seller may exercise the right of set-off under this Agreement as to any sums owed by Seller and/or its affiliates under any other contract or agreement with Customer and/or its affiliates. Customer agrees to pay Seller any and all collection fees, attorneys’ fees, and court costs incurred by Seller in collecting any amounts due under this Agreement.
- A Fuel Service Charge or a Freight Charge per load based on the Fuel Service Charge or Freight Charge in effect at time of shipment will be added to each invoice.
- Prices for Products on Quote do not include any manufacturing, severance, gross receipts, use, or sales taxes, either now in effect or becoming effective after the date of this Agreement. All manufacturing, severance, gross receipts, use, or sales taxes in effect on date of shipment will be added to the invoice based on the delivery address.
- All prices are FOB Job Site unless otherwise specified in this Quote.
- Seller reserves the right to amend or withdraw this Quote should any design or Product or prior Customer approval of Product be changed in any way prior to Seller’s production of the Products or Seller’s purchase of castings
- No Job specific testing will be provided by Seller. Any and all Job testing will be performed and paid for by Customer.
- No liners, coating, additives, special gaskets, or other similar items are provided for any Product on this Quote unless so specified in this Quote.
- If Customer accepts this Quote for the Job identified in this Quote, the prices on this Quote are valid for a period of twelve (12) months from the date of this Quote. After twelve (12) months, all prices will escalate by a minimum of five (5) percent in each successive twelve (12) month period for all shipments made in such successive twelve (12) month periods.
- All castings are quoted separately and will be billed separately unless otherwise specified in this Quote.
- If a Product is not listed in this Quote, then Seller will not supply the Product as a part of this Quote for the Job.
- All quantities of Products are approximate and subject to change. If the quantity of any Product shipped based on this Quote is greater than ten (10) percent or less than ninety (90) percent of the quantity shown on this Quote, the price for the Product is subject to change for all shipments greater than or less than the ten (10) percent increase or decrease in the quantity of the Product.
- Seller assumes no liability for Customer’s responsibility for meeting any specific specifications for any Job.
- This Quote is subject to the approval of designs and drawings by Customer’s Engineer of Record.
- In the absence of any ASTM specifications, appropriate Department of Transportation specifications specified in this Quote, or mutually agreed upon specifications, the Products will be manufactured according to Seller’s standard manufacturing specifications.
- Seller will not begin production of the products until Seller’s shop drawings have been approved by Customer. Seller will submit shop drawings to Customer for approval on a per structure/line as soon as the entire individual structure/line has been detailed.
- Customer must provide written approval of submittals before production of Products by Seller.
- Manhole Products are round manholes unless specified otherwise in this Quote.
- Seller will not conduct any vacuum tests on any Products in this Quote unless so specified in this Quote.
- Seller is not responsible for any errors or omissions in this Quote or on Job.
- This Quote is valid only if accepted in its entirety. No partial acceptance of this Quote or its quantities will be accepted by Seller.
- In lieu of all expressed, implied, or statutory warranties, including but not limited to any express or implied warranties of merchantability, workmanship, or fitness for a particular purpose and of any other obligations on the part of the Seller, the Seller warrants that at the time of delivery the quality and workmanship of the Products conformed to the specifications specified in the Quote. Customer shall verify the Products are in compliance with the specifications for the Job prior to the installation of the Products.
- In no event shall Seller be liable for special, incidental, or consequential damages, losses, or expenses directly or indirectly arising from the sale, handling, or use of the products or from any other cause or breach hereof, including but not limited to negligence.
- Customer will not bring any legal action against the Seller for any claim with respect to any Products furnished under this Agreement more than one (1) year after the delivery of the products to the Customer. Seller and Customer agree that any cause of action with respect to such Products shall be measured from the date of the delivery of such Products.
- This Quote shall be deemed accepted without modification upon a request for delivery of Products, release for production of Products, acceptance of Products and/or payment for Products listed in this Quote for the Job identified in this Quote or receipt of this Quote executed by the Customer.
- This Quote will govern any questions related to conflicts between the Customer’s Purchase Order (if issued for this Job) and this Quote.
- Seller reserves right to halt the shipment of Products to Job if Customer does not pay any invoices for Job issued by Seller within Seller’s terms of Net 30 days from date of Seller’s invoices.
- Customer shall have the right at any time to make reasonable changes in specifications, drawings or other data incorporated into this Quote as well as changes to the method of shipment or place of delivery, and time of delivery (except that time of delivery is subject to Delivery – Section 8) subject to following condition: Any difference in price resulting from such changes shall be equitably adjusted as agreed upon in an executed change order. Prior to the commencement of any changes to the Products described in this Quote, Seller shall submit promptly to the Customer a written proposal of the cost increase or decrease for the revised Products in a manner acceptable to the Customer. For any Products that Customer requests to be added to this Quote or other changes to the Products, Customer and Seller must have a written agreement. If this written agreement is not agreed to by the Customer and the Seller, then the requested Products will not be added, or changes made to the Products on this Quote.
- Seller does not design or configure Jobs. Customer is responsible for all design work required on Job.
- Seller’s liability for any and all damages related to its Products shall be limited to the replacement of the Products sold under this Quote. In no event shall Seller be liable for any consequential, indirect, incidental, special, exemplary, or punitive damages with regard to any claim arising out of or relating to its Products furnished under this Quote.
- This Quote is valid only for the Customer listed hereon as Customer and may not be assigned to any other entity.