4FRONT ENGINEERED SOLUTIONS, INC.
Revision: July 31, 2013
1. Entire Agreement; Acceptance. These General Terms and Conditions of Sale (the “Terms”), any other sales terms (if any) agreed to by Buyer and Seller in a written document signed by an authorized representative of Buyer and Seller (the “Sales Terms”) contain the entire and exclusive agreement between the parties regarding the sale of each Product, and are collectively referred to herein as the “Contract”. If there is a conflict between the Terms and the Sales Terms, the Sales Terms shall govern and control over the Terms but only to the extent of such conflict. All terms and conditions contained in any prior or subsequent oral or written communication between Buyer and Seller (including, without limitation, terms and conditions contained in Buyer’s purchase order) which are different from or in addition to the terms set forth in the Contract are hereby expressly rejected and shall not be binding on either Buyer or Seller, and Seller hereby objects thereto. No addition to, or alteration or modification of, the Contract shall be valid unless made in a writing signed by an authorized representative of each party specifically referring to the Contract. Any action by Buyer in furtherance of a sale or purchase of Product shall constitute acceptance of the Contract.
2. Price; Payment; Taxes. The price for Product is the price in effect on the date of shipment, unless otherwise agreed to in writing by Buyer and Seller.
Payment for the full amount of each Seller invoice shall be net thirty (30) days and shall be addressed to Seller as indicated on such invoice, in United States currency. Buyer shall not be entitled to make any offset or deduction from any Seller invoice for any reason whatsoever. Acceptance by Seller of bank draft, check, or other media of payment is subject to immediate collection of the full face amount thereof.
In addition to payment of the purchase price, Buyer shall be responsible for and pay any and all governmental taxes, charges, or duties of every kind whatsoever (excluding any tax based upon Seller’s net income or net worth) resulting from, arising out of, or relating to the manufacture, sale, shipment, delivery, installation or use of the Product sold under the Contract (“Tax”). All purchase orders should clearly reflect the Buyer’s tax responsibility, and should include any tax exempt or resale certificate if the Buyer intends to deduct the tax amount included in the proposed transaction.
3. Breach; Termination. If Buyer breaches any term of the Contract or any other contractual obligation in favor of Seller, then: (a) Seller may choose to defer any or all further shipments or other performance under the Contract and performance of any other contractual obligation in favor of Buyer until Buyer cures its breach; or (b) Seller may immediately terminate the Contract if Buyer fails to cure such breach within ten (10) days after receipt of written notice from Seller describing such breach. In the event of a termination, all outstanding payment obligations or other indebtedness of Buyer to Seller shall be due and payable no later than fifteen (15) days after delivery of notice of termination. Acceptance by Seller of less than the full amount due shall not be a waiver of any of Seller’s rights under the Contract or applicable law.
Notwithstanding any other provision in the Contract, Seller shall have no obligation to pay any rebate, issue any credit or make any other payment of any kind to Buyer unless Buyer is fully in compliance with its payment and other obligations under the Contract and any other contractual obligation in favor of Seller. In addition, in the event that Buyer fails to make any payment when due, Seller shall have the right to offset any and all outstanding payment obligations or other indebtedness of Buyer to Seller against any outstanding payment obligations or other indebtedness that Seller or any of its affiliates may owe Buyer.
4. Force Majeure. Neither Seller nor Buyer shall be responsible for any delay or failure to make or deliver Product or take delivery of Product due to any cause or circumstance beyond its reasonable control (“Force Majeure”), including, without limitation, the following: (a) fire, storm, flood, strike, lockout, accident, act of war or terrorism, riot, civil commotion, embargo, (b) any regulation, law, order or restriction of any governmental department, commission, board, bureau, agency, court, or other similar government instrumentality (“Governmental Authority”), or (c) the inability of Seller to obtain any required raw material, product, energy source, equipment, labor, or transportation from Seller’s usual sources of supply, at prices and on terms Seller deems economical and commercially reasonable. Neither party is subject to any liability to the other for failing to perform during the period in which such Force Majeure exists. Without limiting the generality of the foregoing, under no circumstances shall Seller be obligated to purchase Product from a third party for delivery to Buyer in the event of a Force Majeure. Quantities so affected by Force Majeure may, at the option of either party, be eliminated from the Contract without liability, but the Contract shall remain otherwise unaffected. A party’s obligation to render timely payment shall not be excused by this provision.
5. Compliance with Laws. Buyer shall comply with all applicable laws, statutes, ordinances and regulations of any Governmental Authority (“Applicable Laws”) relating to or governing Buyer’s handling, storage, transportation, installation, use, treatment, or disposal of Product, including, but not limited to, following local building and fire codes and obtaining and paying for all necessary permits, licenses and fees. Buyer shall comply with all United States export control laws. Seller assumes no liability for Buyer’s failure to comply with Buyer’s obligations arising under any Applicable Laws. Buyer warrants that it has used its own independent skill and expertise in connection with the selection and use of the Product and that it possesses the skill and expertise necessary to comply with all Applicable Laws relating to the processing, handling, storage, transportation, delivery, unloading, installation, discharge, treatment, operation, use or disposal of Product. Buyer shall defend, indemnify and hold harmless Seller from and against all claims, demands, actions, causes of action, suits, proceedings, damages, losses, liabilities, fines, penalties, judgments, costs, and expenses (including reasonable attorneys’ fees and expenses) resulting from, arising out of, or relating to Buyer’s (or others’) violation of any Applicable Laws.
6. Warranties. In addition to any express written warranty made to Buyer in the applicable Product manual (“Manual Warranty”), Seller warrants that at the time of delivery that (a) Product is free and clear of all liens, encumbrances and security interests, and (b) Product complies with Seller’s published specifications (or other specifications referenced in the Contract). If there is a conflict between the Manual Warranty and the Sales Terms, the Manual Warranty shall govern and control over the Terms but only to the extent of such conflict. The warranties set forth in the preceding sentence are Seller’s sole warranties with respect to the contract, and seller makes no other warranties or guarantees of any kind whatsoever, express or implied, including, without limitation, implied warranties of fitness for a particular purpose or merchantability.
Seller makes no warranties with respect to, and buyer assumes full responsibility for, all handling of product after delivery to Buyer.
7. Inspection; Product Claims. Buyer shall inspect the Product supplied hereunder immediately after delivery. All claims by Buyer relating to any alleged non-conformities or other deficiencies in, or shortage of, Product purchased under the Contract must be made by written notice to Seller in accordance with the provisions of this Section 7. The period for providing written notice of all other claims shall be as set forth in Section 9 hereof. For all claims for deficient Product purchased under the Contract, Buyer shall provide written notice to Seller of the existence and nature of such claim within thirty (30) days after the date of delivery of such Product. Buyer’s failure to given written notice of any claim within such thirty (30) day period shall constitute unqualified acceptance of such Product by Buyer and a complete waiver by Buyer of all claims of any kind related to the Product from such shipment.
All claims for shortages of Product must be received by Seller in writing within ten (10) days after the delivery of such Product. Seller shall have a reasonable opportunity to inspect any shipment alleged by Buyer to contain a shortage. Buyer’s failure to give notice of any claim for shortage within such ten (10) day period shall constitute unqualified acceptance of such Product by Buyer and a complete waiver by Buyer of all claims with respect to any shortage of Product from such shipment. The parties agree to use commercially reasonable efforts to resolve any discrepancies regarding alleged shortages of any shipment of Product.
As used in this Section 7 elsewhere in this Contract, “claims” or “cause(s) of action” means all assertions of any legal, equitable, or admiralty claims, demands, actions, causes of action, suits, or proceedings (including but not limited to negligence or strict liability; other tort; express or implied warranty; contract; indemnity; contribution; or subrogation), and all damages, losses, liabilities, fines, penalties, judgments, costs, and expenses (including attorneys’ fees and expenses) resulting from, arising out of, or relating to the Contract, the Product purchased under the Contract, or the performance or nonperformance under the Contract by any party hereto.
8. Limitation of Liability and Remedies. SELLER’S TOTAL LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY CLAIM OR CAUSE OF ACTION ASSOCIATED WITH THE NON-CONFORMANCE OF ANY PRODUCT TO SPECIFICATIONS IS EXPRESSLY LIMITED TO REPLACEMENT OF NONCONFORMING PRODUCT OR PAYMENT TO BUYER OF AN AMOUNT EQUAL TO THE PURCHASE PRICE OF THE SPECIFIC PRODUCT FOR WHICH DAMAGES ARE CLAIMED, AT SELLER’S OPTION. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY OTHER DAMAGES INCLUDING, WITHOUT LIMITATION, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES. SUCH EXCLUDED INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE AND OTHER DAMAGES INCLUDE LOSS OF PROFITS, LOSS OF PRODUCTION, LOSS OF USE, OR ANY OTHER INDIRECT DAMAGE OR LOSS OF ANY KIND OR CHARACTER WHATSOEVER TO BUYER, ITS CUSTOMERS, OR OTHER PERSONS OR ENTITIES. ANY ATTEMPT TO REMEDY OR CORRECT A CLAIMED DEFICIENCY IN PRODUCT BY PERSONS OR ENTITIES NOT AUTHORIZED BY SELLER TO PERFORM SUCH CORRECTIVE WORK OR ANY CONTINUED USE OF SUCH PRODUCT SHALL VOID THE PRODUCT WARRANTY SET FORTH IN SECTION 6 HEREOF AND BUYER SHALL BE DEEMED TO HAVE ACCEPTED THE PRODUCT “AS IS” WITH NO FURTHER OBLIGATION OF SELLER TO BUYER. IF REQUESTED BY SELLER, BUYER SHALL RETURN THE NONCONFORMING PRODUCT TO SELLER STRICTLY IN ACCORDANCE WITH SELLER’S WRITTEN INSTRUCTIONS CONCERNING SHIPPING, HANDLING, INSURANCE, AND OTHER MATTERS AS TO WHICH SELLER ISSUES INSTRUCTIONS. FAILURE TO COMPLY WITH THESE PROVISIONS SHALL INVALIDATE ANY CLAIM BY BUYER FOR BREACH OF WARRANTY.
9. Limitation of Action. EXCEPT AS OTHERWISE SET FORTH IN SECTION 7 HEREOF, BUYER’S FAILURE TO COMMENCE ANY CAUSE OF ACTION RELATED TO THE PRODUCT OR OTHERWISE ARISING UNDER THE CONTRACT WITHIN ONE (1) YEAR AFTER THE DATE OF DELIVERY SHALL CONSTITUTE A COMPLETE WAIVER BY BUYER OF ANY SUCH CAUSE OF ACTION AND SHALL FOREVER BAR ALL RIGHTS OF BUYER TO COMMENCE ANY CAUSE OF ACTION WITH RESPECT THERETO. BUYER EXPRESSLY WAIVES ANY OTHERWISE APPLICABLE STATUTE OF LIMITATIONS RELATING TO ANY CAUSE OF ACTION UNDER THE CONTRACT.
10. Allocation. Seller may allocate its available supply of Product among its customers, itself, and its affiliates on such basis as Seller deems fair and reasonable if Seller is unable, for any reason, to supply the quantities of Product contemplated by the Contract.
11. Credit. If at any time the financial responsibility of Buyer, or the credit risk involved, shall become unsatisfactory to Seller, Seller may require cash or satisfactory security prior to subsequent shipments or deliveries of Product under the Contract. The election by Seller to require such cash or security shall not affect the obligation of Buyer to take and pay for the quantity of Product set forth in the Contract. Buyer agrees to pay all costs and expenses, including reasonable attorneys’ fees, incurred by Seller in the collection of any sum payable by Buyer to Seller under the Contract. Seller shall be entitled to interest on any overdue sum at the maximum rate allowed by applicable law.
12. Title; Risk of Loss. Unless otherwise expressly provided in the Sales Terms, risk of loss of Product shall transfer to Buyer upon Seller’s delivery of such Product to the shipping point. In addition, unless otherwise expressly provided in the Sales Terms, title to Product shall transfer to Buyer simultaneously with risk of loss.
13. Delivery. Seller is responsible for shipping manufactured orders complete per the date contained in the Contract, or, if no such date is specified, within a reasonable time. Seller will confirm delivery date prior to shipment. Any change in delivery dates may result in storage fees if Product has been built or scheduled by the Seller and is scheduled or ready for shipment. For sales to Distributors, if Product is shipped directly to the jobsite, unloading of equipment is to be performed by Buyer (forklift or other comparable material handling equipment required), and, after unloading, Buyer is responsible for securing all equipment until installation is complete, and will be solely responsible for any damage to or loss of Product that may occur prior to its installation. For sales made directly by Seller to others, Product will be shipped directly to the jobsite, unloading of equipment will be performed by or arranged by Seller, and, after unloading, Buyer will be responsible for securing all equipment until installation is complete, and will be solely responsible for any damage to or loss of Product that may occur prior to its installation.
14. Assignment; Survival. Buyer shall not assign all or any portion of the Contract without Seller’s prior written consent. The Contract shall bind and inure to the benefit of the successors and permitted assigns of the respective parties. In order that the parties may fully exercise their rights and perform their obligations arising under the Contract, any provisions of the Contract that are required to ensure such exercise or performance (including any obligation accrued as of the termination date) shall survive the termination of the Contract. All limitations of Buyer’s remedies and Seller’s liabilities shall survive the expiration, termination or cancellation of the Contract.
15. Governing Law; Miscellaneous. The Contract shall be governed by the laws of the State of Texas, USA, excluding its conflict of laws principles. The parties agree, consent and waive contest to the exclusive jurisdiction and venue of the federal or state courts of Texas for all disputes arising out of or relating to this Contract. The United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended, shall not apply to the Contract Failure of either party to exercise any right it has under the Contract on one occasion shall not operate or be construed as a waiver by such party of its right to exercise the same right on another occasion or any other rights it has. Any waiver must be in a writing signed by the waiving party. If any provision of the Contract shall be adjudicated to be invalid or unenforceable, it is the parties’ intent that the remaining provisions of the Contract will remain in full force and effect, and the affected provision or portion thereof will be deemed modified so that it is enforceable to the maximum extent permissible to reflect as closely as possible the intentions of the parties as evidenced from the provisions of the Contract.