Upon request, Fencing Supply Group or one of its affiliates (“Seller”) may send to buyer or one of its affiliates (“Buyer”) a quotation (“Quotation”) for the sale of certain products (“Products”). A Quotation is valid for the time period indicated on the Quotation or, if no time period is indicated, for 30 days from the issue date of the Quotation. To accept a Quotation, Buyer must submit a completed purchase order that is consistent with the terms of the Quotation (a “Purchase Order”) to Seller before the end of the quotation period. If Buyer issues a Purchase Order after the quotation period, Seller will review the Purchase Order and may, in its sole discretion, accept the Purchase Order as presented, reject it, or make a counteroffer by issuing a revised Quotation. Quotations are based on the accuracy of the specifications provided to Seller by Buyer. Seller may re-quote a job at time of receipt of a Purchase Order from Buyer if the specifications or other input materials included in the Purchase Order differ from the information used for purposes of the Quotation.
2. CONTRACT AND ACCEPTANCE:
(a) All sales of Products are subject to Seller’s credit approval and these terms and conditions (the “Terms and Conditions”), which form an integral part of any Quotation issued by Seller and any Purchase Order placed by Buyer. Seller’s offer to sell Products as set forth in the Quotation is expressly conditioned upon Buyer’s assent to these Terms and Conditions without any additional or different terms, conditions or warranties, and Buyer’s acceptance of the Quotation by submission of a corresponding Purchase Order is deemed to be Buyer’s assent to these Terms and Conditions. Any additional or different terms, conditions or warranties contained in any Purchase Order, confirmation or other communication delivered by Buyer are expressly rejected and not binding on Seller. The accepted Quotation, the conforming provisions of the Purchase Order, together with these Terms and Conditions and any applicable attachments, addenda, schedules and exhibits attached by Seller to the Quotation (this “Agreement”) constitute the entire agreement of the parties with respect to its subject matter. Seller accepts Purchase Orders by confirming the order (whether by written acceptance, invoice or otherwise) or by delivering the Products, whichever occurs first. No Purchase Order is binding on Seller unless accepted by Seller.
(b) Buyer may not cancel or change a submitted Purchase Order (including changes to Products set forth on a Purchase Order previously submitted to Seller) without Seller’s prior written consent. If Buyer wishes to cancel any Purchase Order, Seller reserves the right, as a condition to consenting to the cancellation, to charge Buyer a cancellation fee and restocking fee for costs incurred, as determined by Seller in its reasonable discretion. These costs may include, without limitation, special ordered materials and other specialty items.
3. TITLE AND DELIVERY:
(a) Unless otherwise agreed in writing, Seller shall deliver all shipments of Products F.O.B. Origin (Seller’s premises identified in the Quotation) (Incoterms 2020). Title and risk of loss to Products pass to Buyer upon Seller’s tender of the Products to the carrier. Any loss or damage after that tender does not relieve Buyer from any obligation under the Agreement. Buyer is responsible liable for all costs of insurance and transportation and for all import duties, taxes and any other expenses incurred or licenses or clearance required at any port of entry and destination.
(b) Shipping dates are approximate only. Seller shall not be liable for any loss or expense, whether by way of contract or tort (consequential or otherwise), incurred by Buyer if Seller fails to meet the specified estimated delivery schedule. Seller shall use commercially reasonable efforts to provide Buyer with notice of any anticipated delays.
4. ACCEPTANCE OF PRODUCTS:
(a) Buyer shall inspect and accept or reject the Products immediately upon delivery. Unless Buyer provides written notice to Seller within 10 business days following delivery of any claim that the Products are of insufficient quantity, do not conform to the agreed upon terms, or contain material defects, the Products shall be deemed to conform to the Quotation and Buyer shall be deemed to have accepted the Products. Buyer’s sole remedy for short deliveries is for Seller to deliver the undelivered quantity of Products, and Buyer’s sole remedy with respect to any defective Products shall be the repair or replacement of the defective Products by Seller.
(b) Buyer acknowledges and agrees that the remedies set forth in this Section 4 are Buyer’s sole and exclusive remedies for the delivery of Products of insufficient quantity or of defective Products. Except as provided in this Section 4, Buyer has no right to return Products purchased from Seller under this Agreement.
5. PRICING AND PAYMENT:
(a) For all Products, Buyer shall pay Seller all fees designated in the Quotation (as they may be modified by Seller in accordance with Section 1), which may include, without limitation, costs appropriate to manufacture the Products specified in the Purchase Order (collectively, the “Purchase Price”). Buyer shall pay Seller the Purchase Price within 30 days following the invoice date, unless alternative payment terms are agreed to in writing by Seller and the Buyer before the Purchase Order is delivered. Seller may review Buyer’s creditworthiness at any time and require a credit agreement. If in Seller’s sole discretion, the financial position of the Buyer has changed prior to completion of any order, Seller may refuse to complete production of the Products or to make delivery of any further work or materials pending modification of terms of payment. Buyer and Seller agree that Seller shall have no liability to Buyer for taking such action.
(b) If any invoice for Products remains unpaid 30 days after the date on which payment was due, Seller shall be entitled (without notice and without limitation of any other rights of Seller) to charge interest on the unpaid balance from the date due at a rate equal to the lesser of: (i) 1.5% per month; or (ii) the maximum rate permitted by applicable law. If any outstanding balance remains unpaid 30 days after the date on which payment was due, Seller may, without limiting any of its other rights and remedies, suspend the manufacturing or delivery of any or all Products or any other products ordered by Buyer or its affiliates, an alter or suspend any credit previously or thereafter extended to Buyer or its affiliates. Buyer shall reimburse Seller for all costs and expenses of collection, including, without limitation, reasonable attorneys’ fees, if any amounts owed by Buyer are subject to collection.
(c) If Buyer has a dispute regarding any invoice, Buyer must inform Seller within 10 business days after receipt of the invoice in writing regarding the nature of the dispute. Buyer shall nonetheless pay all undisputed amounts as provided in these Terms and Conditions.
(d) The Purchase Price set forth in the Quotation is exclusive of all taxes, including, without limitation, federal, state and local excise, sales, use and other taxes, now or hereafter levied or imposed on the sale, delivery or use of Products, and Buyer shall be solely liable for, and shall pay, all such taxes, regardless of whether included on any invoice.
6. DISCLAIMER; LIMITATIONS OF LIABILITY:
(a) EACH PRODUCT IS PROVIDED ON AN “AS IS” BASIS. SELLER DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS, ORAL, IMPLIED OR STATUTORY, WITH RESPECT TO ANY PRODUCT, AND SELLER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY WITH RESPECT TO EACH PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUALITY, COMPLETENESS, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. SELLER DOES NOT ASSUME ANY OTHER OBLIGATION OR RESPONSIBILITY WITH RESPECT TO THE PRODUCTS, AND SELLER HAS NOT AUTHORIZED ANY PERSON TO ASSUME ANY OTHER OBLIGATION OR RESPONSIBILITY ON ITS BEHALF.
(b) TO THE GREATEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER, ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, OR EMPLOYEES BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR ENHANCED DAMAGES ARISING OUT OF THIS AGREEMENT OR ANY PRODUCT, INCLUDING CUSTOMER’S COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, INABILITY TO OBTAIN SUBSTITUTE GOODS, DELAY, WORK STOPPAGE, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, OR LOSS OF PROFIT DAMAGES OF ANY KIND OR NATURE WHATSOEVER, EVEN IF SELLER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE FOREGOING DAMAGES ARE BASED ON DEFECTS IN THE PRODUCTS, NEGLIGENCE (INCLUDING GROSS NEGLIGENCE) OR OTHER TORT, WARRANTY, CONTRACT, INDEMNITY, BREACH OF ANY PROMISE, STRICT LIABILITY OR OTHERWISE. THE MAXIMUM LIABILITY, IF ANY, OF SELLER, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AND EMPLOYEES FOR ALL DIRECT DAMAGES RESULTING FROM ANY PRODUCT AND SELLER’S OBLIGATIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL PURCHASE PRICE PAID TO SELLER WITH RESPECT TO THE APPLICABLE PRODUCTS.
Buyer shall indemnify, defend and hold harmless Seller, its affiliates, officers, directors, employees, suppliers, and agents (the “Seller Indemnified Parties”), from and against any and all third-party claims, and all costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) incurred in connection with those third-party claims in any way arising out of, resulting from or relating to: (a) Seller’s production of any Product in conformity with the specifications in the Quotation; or (b) Buyer’s use of any Products, including death, personal injury, damage to property, or damage to the environment. If Buyer fails to indemnify a Seller Indemnified Party as required by this Agreement, then Buyer shall pay for any damages (including reasonable attorneys’ fees), claims, losses, fees, expenses and costs incurred by the Seller Indemnified Party in enforcing the terms of this Agreement.
8. NONDISCLOSURE OF CONFIDENTIAL INFORMATION:
All proprietary designs, drawings, and other information submitted by one party to the other party and identified as “Confidential,” “Proprietary,” or similar are the disclosing party’s confidential information. The recipient shall not use or disclose that confidential information except as needed to fulfill its obligations or exercise its rights under this Agreement. The foregoing restrictions shall not apply to: (a) information within the legitimate possession of the receiving party without an obligation of nondisclosure before receipt of the information from the disclosing party (or an affiliate of the disclosing party); (b) information that is, at the time of disclosure by the disclosing party, then in the public domain or thereafter comes into the public domain through no fault of the receiving party; (c) information that is obtained by the receiving party from a third party with legitimate possession thereof and the unrestricted right to make that disclosure; or (d) information ordered to be disclosed by a court of competent jurisdiction or other government agency with appropriate legal authority, provided the receiving party first notifies the disclosing party in writing as soon as reasonably possible and before disclosing any such information, and reasonably cooperates with the disclosing party if the disclosing party elects to contest the ordered disclosure or obtain confidential treatment of the information to be disclosed.
9. COMPLIANCE WITH LAWS:
Buyer shall comply with all laws, regulations and ordinances applicable to its business and purchase and use of Products. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement, and purchase, use and install Products. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Seller may terminate this Agreement and any outstanding Purchase Orders if any governmental authority imposes antidumping, tariff, or countervailing duties or any other penalties on the Products.
In addition to any remedies that may be provided under this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and that failure continues for 30 days after Buyer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any provision of this Agreement, in whole or in part; or (c) 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. Unless otherwise specified in the notice of termination, termination of this Agreement terminates all outstanding Purchase Orders and Quotations.
(a) Independent Contractors. The parties are independent contractors. Neither party has any power to bind the other or to create any obligation on behalf of the other.
(b) Promotional Matters. Seller may issue press releases and other marketing and promotional material describing the relationship created by this Agreement and the purchase of the Products by Buyer, including displaying the Products provided to Buyer as examples of the product offerings available from Seller. In connection with the production of the Products hereunder, Buyer hereby grants Seller the right to use Buyer’s name and trademarks in any advertising and publicity materials of Seller identifying Buyer as a customer of Seller.
(c) Governing Law; Dispute Resolution. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia without giving effect to any choice or conflict of laws provision or rule that would cause the application of the laws of any jurisdiction other than the State of Georgia. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any sale or purchase of Products. Seller, in its sole discretion, may elect to bring an action against Buyer in: (i) the jurisdiction covering Buyer’s principal place of business or in any jurisdiction in which any assets of Buyer may be found; or (ii) any federal or state court in Fulton County in the State of Georgia. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(d) Force Majeure. Seller shall not be deemed to be in default or in breach of this Agreement, or otherwise liable to Buyer or any third party in any way, for any interruption, disruption, delay or failure in the performance of its obligations under this Agreement that results directly or indirectly from any cause or circumstance beyond its reasonable control, including, but not limited to, acts of God, war or warlike conditions, terrorism, riots, embargoes, acts of civil or military authority, fire, pandemics, flood, accidents, strikes or labor shortages, sabotage, delays or failures of transportation equipment or facilities, or shortages of fuel or materials.
(e) Severability; Waiver. If any term or condition of this Agreement is held to be invalid or unenforceable, the remaining terms and conditions will remain in full force and effect and are enforceable to the maximum extent permitted by law. The failure of either party to enforce any provision of this Agreement is not a waiver of that provision or of the right to enforce it at a later time.
(f) Survival of Provisions. The following provisions survive the termination of this Agreement for any reason: Sections 4(b), 5 (Pricing and Payment), 6 (Disclaimer; Limitations of Liability), 7 (Indemnity), 8 (Nondisclosure of Confidential Information), 9 (Compliance with Laws), and 11 (Miscellaneous).
(g) Amendment; Assignment. This Agreement may not be amended or otherwise modified except by a writing signed by both parties. Buyer may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other person or entity without Seller’s express prior written consent.
(h) Third Party Beneficiaries. This Agreement is not intended to benefit any third party or create any third party beneficiary rights; however, all Seller Indemnified Parties are intended third party beneficiaries of this Agreement.
(i) Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes any and all prior agreements and understandings on that subject.
END OF TERMS AND CONDITIONS OF SALE
Version 1.1 (October 2022)