These Terms and Conditions of Sale (the "Terms") apply to all work orders, quotations, sales, and invoices (collectively “Order(s)”) by Fowler Industrial Services, LLC ("Seller") for products, materials, components, accessories, and parts (collectively "Products") and the performance of services (“Service(s)”) for purchaser (“Purchaser”). These Terms are incorporated into, and become a part of, each quote, purchase order, release, work order, sale, invoice, and other agreement, whether expressed in written form, by electronic data exchange or other format, relating to the Products. Seller agrees to sell to Purchaser only on the condition that Purchaser assents to all of the Terms set forth herein. Shipments or the provision of Products and services by Seller shall not be deemed acceptance of any provision of Purchaser’s terms and conditions in any purchase order, confirmation, or any other Purchaser communication or document, which is different from, inconsistent with, a modification of, or in addition to these Terms. All prior proposals, negotiations, course of dealings, representations, and agreements, if any, are superseded and merged herein, unless amended in a separate written agreement signed by a duly authorized officer of Seller stating that it is intended to amend these Terms, and in such event these Terms will still apply except to the extent inconsistent with any such written amendment. Once Seller performs any Service or delivers and Products, Purchaser will be deemed to have agreed that these Terms are incorporated into the contract of sale and any additions to, changes in, modifications of, or revisions of these Terms that Purchaser proposes, either orally or in writing, will be deemed to have been rejected by Seller. Purchaser consents to these Terms for all Products and Orders with Seller.
1. Acceptance; Cancellation. All Orders are subject to acceptance by Seller. The issuance of a request for quotation by Seller does not constitute acceptance by Seller of any proposal from Purchaser. Seller will issue a work order for Services and an invoice for Products to Purchaser, and when Purchaser either signs or returns Seller’s work order or invoice, then Seller shall have the right to begin performance.
2. Price. Prices for Products will be based on the price applicable at the time Seller performs the Services or provides the Products. Freight and insurance charges from Seller’s facility and Seller’s freight handling charges shall be borne by Purchaser, unless otherwise agreed in writing by Seller. The freight and handling charges shown on the invoice may include an additional handling charge and/or may not reflect the actual cost of shipping the Products. Purchaser will pay all applicable sales, purchase, use, consumption and excise taxes. Taxes are not included in the quotations for Products, unless expressly set forth by Seller as a separate line item.
3. Payment. (a) Payment will be made upon receipt of Seller’s work order or invoice, but in no event later than fifteen (15) days of the date of invoicing All payments not made within thirty (30) days of the date of invoicing or the receipt of the work order shall bear interest at the rate of 18% per annum from the due date. If suit is brought by Seller to enforce these Terms, Purchaser will pay Seller’s reasonable attorneys’ fees, plus other reasonable costs of collection. (b) If, in the sole judgment of Seller, it appears that Purchaser may not be able to make payment when due, or if Purchaser otherwise has not made payment to Seller as required by any other Order between Seller and Purchaser, Seller shall have the right to suspend manufacture, shipment or delivery of Products. If Seller deems itself insecure of receiving payment from Purchaser, Seller reserves the right before making any delivery to require payment in cash or additional security for payment. If Purchaser fails to comply with the requirements of this Section 3, Seller may terminate the Order. (c) Purchaser’s failure to timely pay any Order will constitute a waiver by Purchaser of any and all causes of action, including future causes of action, whether known or unknown, including, but not limited to, indemnity and contribution, arising from or related to an Order.
4. Shipment. (a) Seller will not be liable (and Purchaser agrees to forego making claims against Seller) for delays in manufacture, shipping, or delivery caused in whole or in part by: (i) delays in receipt of or unavailability of materials, fuel, power or transportation; (ii) breakdown of equipment; (iii) strikes, lockouts or other differences with employees; (iv) local labor shortage; (v) accidents, war, riots, fire, floods, storms, epidemic, acts of God or other casualties; (vi) acts or omissions of Purchaser; (vii) government action, embargo, allocation, regulation or requirement; or (viii) other causes beyond Seller’s reasonable control whether of a similar or dissimilar nature than those enumerated above. (b) If Purchaser requests Seller to delay an Order, Seller will invoice Purchaser for the Order. Purchaser shall pay the invoice when due, plus storage charges, and Purchaser shall assume all risk of damage and deterioration of the stored Products. (d) Any notice of breach, nonconformity or revocation of acceptance shall not be effective, unless written notice of the revocation is mailed to Seller by certified mail, return receipt requested, within five (5) calendar days after Purchaser has discovered the defect in the Products or thirty (30) calendar days after delivery to Purchaser, whichever occurs first. Purchaser represents that it is familiar with the nature of the Products furnished by Seller and agrees that the time periods set forth in these Terms for notice of nonconformity and notice of revocation of acceptance are reasonable.
5. Returns. No Products may be returned, unless Seller authorizes the return in writing. Returned Products must be unused, undamaged and in original packaging. If Seller authorizes the return of Products, Purchaser may be subject to pay a reasonable restocking fee.
6. Risk of Loss and Title. Title to Products, together with the replacement and additions to the Products, remains in Seller until all amounts due are fully paid to Seller by Purchaser. If title passes to Purchaser, Purchaser grants and Seller retains a purchase money security interest in the Products purchased by Purchaser, together with any replacement or additions to the Products, until the purchase price is fully paid to Seller and all other obligations of Purchaser are satisfied. Risk of loss to the Products purchased passes to Purchaser at the time the Products are (i) are duly delivered to the carrier or (ii) are duly tendered to Purchaser for delivery, whichever occurs first.
7. Warranty. Seller warrants that the Products delivered shall be free from defects in material and workmanship at the time of delivery. If Products sold to Purchaser are not as warranted, Seller shall, at Seller’s sole option, refund the purchase price for the nonconforming Product, or repair or replace such Products provided Purchaser has given timely written notice of the nonconformity and has given Seller an opportunity to inspect the alleged nonconforming Product. Seller will have no liability for damages, shortages, or other causes alleged to have occurred or existed at or prior to delivery to the carrier, unless Purchaser shall have entered full details of the damages on its receipt to the carrier and given Seller timely written notice of the nonconformity. Seller will have no liability for any noncompliance with any building codes that may apply to the Products as used by Purchaser or Purchaser's customers. This warranty does not apply to Products that have been subject to mishandling, misuse, neglect, improper assembly, alteration or repair by Purchaser or the customer of Purchaser. EXCEPT FOR THE FOREGOING EXPRESS WARRANTY OR ANY OTHER EXPRESS WARRANTY SIGNED BY AN AUTHORIZED OFFICER OF SELLER REGARDING A SPECIFIC PRODUCT, THERE ARE NO OTHER GUARANTIBS OR WARRANTIES, WHETHER ORAL, IN WRITING, EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWJSE, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability. SELLER’s LIABILITY ARISING FROM CLAIMS RELATING TO THE DESIGN, SALE, HANDLING OR USE OF PRODUCTS, WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, WILL BE LIMITED TO THE GREATER OF(i) $25,000 OR (ii) THE PURCHASE PRICE OF THE SPECIFIC NONCONFORMING PRODUCT(S). NOTWITHSTANDING ANY STATEMENTS CONTAINED IN THESE TERMS OR ELSEWHERE TO THE CONTRARY, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY CLAIM FOR DELAY, LOSS OF EFFICIBNCY, IMPACT, LOSS OF PRODUCTION OR LOST PROFITS) OR LIABILITY INCURRED BY PURCHASER WITH RESPECT TO ANY PRODUCTS FURNISHED OR TO BE FURNISHED BY SELLER.
9. Indemnification. Purchaser hereby indemnifies and holds Seller, its affiliates, and their officers, directors, employees and representatives harmless from and against any and all costs (including attorneys’ fees), loss and damages of any nature arising out of or resulting in any way from any use or possession of the Products sold hereunder, any fraud or misrepresentation, and any other acts or omissions of Purchaser, Purchaser’s agents, employees or subcontractors, including without limitation claims made for property damage or personal injury (including death), whether said claims are premised on contract or on tort (including without limitation strict liability).
10. Limitation Period. No claim, cause of action, or suit relating to an Order, the Products, or these Terms shall be brought by Purchaser against Seller after the expiration of one (1) year from the date of delivery of Products.
11. Severance, Assignment, No Agency Relationship and No Third Party Beneficiaries. In the event that any provision of these Terms is be deemed illegal, unenforceable, or null and void, all remaining provisions shall remain in full force and effect. Purchaser may not assign its rights or interest or delegate its duties under an Order without the prior written consent of Seller. It is understood that Purchaser is an independent contractor and that no agency relationship at law or in fact exists between Purchaser and Seller. It is further understood that neither Seller nor Purchaser intend for this Order to benefit any third party or class of persons, and there are no intended third party beneficiaries to this order.
12. Non-Waiver. If at any time during its performance of its obligations, Seller fails to assert any rights or remedies available under these Terms or otherwise, or there may be alleged waiver of the rights or remedies available to Seller by a course of dealing or otherwise, Seller’s failure shall not be deemed to be a waiver of Seller’s ability to assert those rights or remedies at any other time during its performance and shall not be deemed to be a waiver of any other right or remedy under an Order. All of the remedies reserved or stated in these Terms are cumulative and not exclusive and in addition to any other or further remedies provided at law or in equity.
13. Choice of Law and Venue. All Order shall be governed by the laws of the State of Indiana. Purchaser consents to the exclusive jurisdiction of the state courts of Allen County, Indiana in the United States District for the Northern District of Indiana, Fort Wayne Division. Purchaser waives any objection based on forum non conveniens or any objection to venue of any such action.
14. Compliance with Laws. In accepting this Order, Purchaser represents and warrants that it has complied and will continue to comply with all applicable federal, state and local laws and regulations relating to Products under this Order. If Seller is held liable for any failure by Purchaser to comply with said laws and regulations, suffers any loss (including incidental and consequential damages) as a result of said noncompliance, the allegation thereof, or administrative or judicial action based thereon, or incurs any expense (including attorneys’ fees) in relation to said noncompliance or the allegation thereof, Seller will indemnify and hold harmless Buyer to the full extent of such liability, loss or expense.
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