- These terms govern the quotation, purchase, and sale of the goods and related services, if any, (collectively Equipment).
- The Buyer’s agreement to purchase from the Seller shall constitute the full acceptance, without exception or omission, of the Terms and Conditions as stated herein.
- The Seller will only sell those goods, services, Equipment or materials specifically set forth in the Quotation. Any modification or revisions must be agreed to in writing by the Seller. The Seller undertakes no responsibility for furnishing any other goods, services, Equipment, data, or materials shown in any plans or specifications incorporated directly or by reference in the Buyer’s Purchase Order or to provide such goods, services, Equipment, data or materials in any form or manner other than that listed on the Quotation or referenced herein.
- The Seller’s Quotation, these Terms and Conditions, and the Buyer’s Purchase Order, are hereinafter referred to as the Agreement.
- Seller’s Quotation is based solely upon those plans, specification sections, and addenda specifically referenced on the face of the Seller’s Quotation. References to other specification sections, plans, or addenda within any of the specification sections, plans, or addenda listed on the face of the Quotation shall not be considered to be included unless they are also listed on the face of the Quotation. Seller shall have no responsibility or liability for errors, conflicts, or omissions in specifications, drawings, or technical information furnished to it. Buyer agrees to indemnify and hold Seller harmless against all loss, liability, and expenses, incurred by Seller on account of any such error, conflict, or omission. Seller has only knowledge of those specification sections, plans, and addenda listed on the face of the Quotation and has not, nor will it, reviewed the entirety of a particular project’s specifications, plans, or addenda. Further, the Seller has no knowledge of site conditions unless otherwise detailed in the specification sections, plans, and addenda listed on the face of the Quotation.
- Seller has no knowledge of local codes, authorities, or requirements, and any such obligations to such local codes, authorities, or requirements shall solely be the responsibility of the Buyer.
- The Buyer understands that the products offered through the Seller are engineered products. The Buyer further understands the need for professional engineering advise in properly applying them. While the Seller may provide general guidance or instruction, this is not to be considered to be whole, complete, error-free, or otherwise a substitute for professional engineering advice. As such, the Seller shall not be liable for the use, misuse or misapplication of any product or any damages arising therefrom.
Price and Terms of Payment
- The currency of Quotation and payment is US dollars.
- Credit card purchases:
- Upon entry of the order by the Seller, the Buyer’s credit card shall be charged for the full product amount, including shipping and handling.
- Should the charge fail to be authorized or be disputed by the issuing card’s bank, the ACH, or any entity with a vested interest; the Seller shall hold shipment of the goods until such time as all charges are resolved to the complete satisfaction of the Seller.
- Open payment terms:
- For established accounts, the Seller may, solely at its discretion, extend payment terms. The terms of payment to approved accounts shall be 1% 15 days, or payable in full (30) days from the date of invoice or shipment, whichever is earlier, provided that no invoice shall be rendered prior to product completion. No other time period or dating method shall apply.
- Should the Buyer require W-9s, waivers, release forms, or other payment based information; such requests shall be made to the Seller by the Buyer at the time of order. Failure of the Buyer to provide such request, waivers, forms, etc. in a timely manner to the Seller shall not relieve the Buyer from or otherwise extend the payment terms above.
- Payment by the Buyer to the Seller shall not be conditional upon payment to the Buyer by any outside party, nor on the timing of any payment to the Buyer by any outside party.
- Retainage shall only be allowed when specifically listed on the face of the Seller’s Quotation. In the event that retainage is allowed of the face of the Quotation, the agreed upon amount shall not exceed (5%) of the Equipment price and shall be paid in full by the Buyer no later than 120 days from the Transfer of Title, regardless of payment to Buyer by any outside party. Retainage shall not extend to Shipping and Handling charges, which must be paid in full with the original invoice.
- If Equipment shipment is made in units or lots, payment for each unit or lot shall be due on shipment of each unit or lot at the price for each unit or lot established in the Agreement, or in an amount equal to the percentage of the total purchase price represented by that unit or lot of the listed price established in the Agreement, if unit or lot prices are not listed.
- The price includes one (1) electronically transmitted, consolidated .pdf file of submittal documentation.
- Submittals consist of:
- Project specific dimensional drawing
- Project specific written specifications
- Project specific component detail sheets
- Standard installation instructions
- Standard product warranty
- Component instruction/installation manuals – when shipped with component by the original Equipment manufacturer
- Standard receiving and storage instructions
- The price does not include, in hard copy or electronic format: operation manuals, instruction books, anchoring/pad design, State specific stamped design calculations, project specific design calculations, insignia, stamps, permits, or any other goods, services, Equipment, data, or materials unless otherwise specifically itemized in the Quotation. Additional engineering, engineering seals, state approvals, insignias or drawings which may be required by local authorities or others for permitting purposes may or may not be readily available and will carry additional charges. Original bills of lading or freight invoices shall not be provided by the Seller, without exception.
- Should the Buyer request that the Seller hold or warehouse the Equipment after the completion, the Buyer agrees to pay the Seller 1.5% per month (or portion there off) of the total invoice amount plus all insurance, storage charges, moving and handling expenses to and from storage, dunnage, and storage materials. Title to the Equipment shall pass from Seller to Buyer upon Buyer’s request for hold or warehousing. Should the Equipment become damaged during storage, the Seller accepts no liability and is under no obligation to repair / recondition / replace the Equipment. At the same time, Seller shall charge the credit card (or invoice) the Buyer for the full Agreement amount for payment within the terms outlined above with no extension in the terms of payment. A supplemental charge or invoice for storage charges will be issued once all additional costs are known.
- Accounts past due shall bear interest at the rate of (1.5%) per month, or the maximum legally permitted rate of interest of the governing law of Seller’s state of operation, as well as $100 per month (or part of month) the account is past due. If it is necessary for the Seller to engage legal counsel or collection agents with regard to a past due account, the Seller will be entitled to collect all costs, expenses, and attorneys fees. Acceptance of this service charge shall not be deemed a waiver of any right the Seller may have by reason of non-payment by the Buyer.
- Should an invoice for Equipment become past due, the Seller may and without notice, suspend the equipment warranty until the account is current. In suspending the Equipment warranty, the Seller may choose to notify the owner, general contractor, project consultant, or any other affected party. Seller is in no way obligated to notify Buyer of such notification. Failure of the Equipment during a warranty suspension period shall not then become warranted once the Buyer's account becomes current.
Title and Use
- The Seller hereby warrants that it is the lawful Owner of any goods, materials, or Equipment proposed to be sold and that it will have a good title to such goods, materials, or Equipment with the full right to sell and convey the goods.
- Seller warrants that all materials shall be new and is not in any way refurbished and that only new and never used components are used. Surplus, used, or refurbished materials will only be provided if specified in Buyer’s Purchase Order.
Risk of Loss
- Shipments are made F.O.B. Seller’s shipping point (EXW) unless explictly stated on the face of the quotation. Title to the Equipment and risk of damage or loss shall pass to the Buyer on receipt by the first carrier or upon completion (for hold or warehoused orders per 2.g above), not withstanding any provisions for payment of freight or insurance by Seller, or the form of the shipping documents.
- Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by the Buyer directly to the carrier.
- Damages must be acknowledged and signed for at the time of delivery.
- Claims for shortage must be conveyed by the Buyer to the Seller, in writing, no later than (10) calendar days from the date of the receipt of goods. Claims for shortage beyond this period will not be accepted nor will they be adequate reason for the delay or diminishment of payment to the Seller.
Shipment & Packaging
- Buyer agrees to pay all shipping and handling charges as invoiced by Seller with respect to the shipment and delivery of the Equipment of the Agreement. Quoted Shipping and Handling costs are estimates only and assume normal conditions of accessibility at the destination. All additional charges associated with, but not limited to: document preparation, delay, delivery notification, redelivery, job site delivery, and restricted access shall be in addition to any Shipping and Handling charges previously quoted. Seller only ships via its contracted carriers. Buyer routing or third party shipping is not allowed.
- Shipment method shall be as designated by the Seller on the Quotation. In lieu of a shipping method designated on the Quotation, the Seller’s standard method for the size and nature of the items shall apply.
- Seller shall ship Equipment as completed unless a shipment (not delivery) date is expressly noted on Buyer's purchase order.
- Verbal or email modifications to shipment date by the Buyer shall not be held to be binding unless expressed on a revision to the Buyer's purchase order and such a revision is agreed to by the Seller. The Seller is in no way obliged to accept the requested revised shipment date.
- Changes in the shipment date that require the Seller to remove from production or substantially delay completion of the product may incur additional costs which the Buyer agrees shall be added to the invoice amount.
- Seller makes no guarantee that the rescheduled estimated shipment date requested will be available as part of the Seller's normal course of business. Expediting charges may be required to meet the Buyer's requested revised shipment date and the Buyer agrees, upon notification by the Seller, to either pay such charges or accept Seller's revised normal estimated shipment date.
- Copies of bills of lading may be provided upon Buyer’s request, no other shipping documents are provided unless required for product export.
- Export documentation does not include legalization or notarization.
- Freight invoices or other documents are not included and will not be provided.
- Offloading, special handling Equipment, local permits or requirements are not included in the shipping and handling. It shall solely be the Buyer’s responsibility to ensure that the unit is off loaded and that necessary Equipment is on site at the time of delivery to do so. Delivery delays or rescheduling for Buyer’s convenience or accommodation may carry additional charges.
- Units may ship via common carrier or flatbed trailer depending upon unit size and order volume. All delivery vehicles are independently owned and operated. The Seller has limited influence over the shipment once it has left the factory dock. The Seller cannot be held responsible for delays in shipping once the unit has left the factory dock and Buyer agrees to hold Seller harmless for any and all delays once the shipment has been delivered to the first carrier (Transfer of Title). Buyer is strongly recommended to provide physical addresses (and not directions) as well as Buyer’s representative’s contact name and number for all shipments. Delivery delays due to Buyer, including but not limited to: multiple drop points, rendezvous requirement, security checkpoint delays, etc. may incur an additional cost. Buyer shall be charged or billed for, and agrees in advance to pay in full, any and all such costs.
Packaging & Handling
- Provisions for special handling, preservation, waterproofing, weather and hazard protection and the like shall be made only upon the written request of the Buyer, and if made, such provisions will be subject to all reasonable charges, overhead, and profit by Seller.
- Certain Equipment may be provided with lifting eyes so that units can be hoisted using overhead Equipment such as cranes, boom trucks, hoists, etc. When performing any overhead lift, all lifting eyes must be used in conjunction with good rigging practices.
- If a structural base with lifting eyes or rings is provided with the unit, only the BASE rings or eyes should be used to lift the Equipment. Roof lifting eyes must never be used to lift units with structural bases.
- UNITS WITH INTEGRAL (BUT NON-STRUCTURAL) BASES ARE NOT INTENDED TO HAVE ADDITIONAL EQUIPMENT INSTALLED BEFORE LIFTING. ADDITONAL EQUIPMENT SHOULD ONLY BE INSTALLED AFTER THE UNIT HAS BEEN LIFTED INTO PLACE.
- Items exterior to the Equipment (hoods, air conditioners, etc.) may be factory fitted and then removed for shipment. It shall be solely the Buyer’s responsibility to reattach, install, wire, or seal such items.
- The Buyer grants the Seller a security interest in any goods, materials or Equipment (“Collateral”) which will be purchased hereunder as a security for the performance by the Buyer of all obligations due the Seller. The Buyer agrees to protect and maintain the Collateral by all reasonable means and not to sell any part of the Collateral or any interest of the Buyer in the Collateral except with the prior written consent of the Seller. If Buyer defaults, Seller may exercise all rights and remedies as secured party for Seller under the Uniform Commercial Code provided, however, provisions herein shall in no way limit any other right of Seller in the event of Buyer’s default or failure to make payment. Buyer further grants Seller the authority to execute and file any and all necessary financing statements to enable Seller to perfect its security interest granted herein by filing or other public notice. Seller shall retain all lien rights and payment bonds against Buyer and the project. Seller hereby retains a security interest in goods until Seller has been paid in full. Seller reserves the right before making any delivery to require payment in advance.
- All deliveries shall be subject to the approval of Seller’s Credit Department or Management, and if Buyer fails to comply with such requirement, Seller may terminate this contract without penalty. If the financial responsibility of the Buyer is materially adversely changed or otherwise becomes, or may become, impaired or unsatisfactory to the Seller, or the Buyer defaults under any other Agreement or contract with Seller, advance payments shall be given by the Buyer upon demand by Seller and shipments shall be withheld, without penalty, until such payment is received and clears.
- Depending upon the destination of the items that Buyer orders or other conditions, the Seller may have a nexus of location or other legal responsibility to collect VATs, federal, state, provincial, and municipal taxes, taxes, duties, fees, or dues as a result of your order. No quotation or offer to sell issued by the Seller includes such items. Buyer agrees to reimburse Seller for any such taxes where the applicable law requires Seller to report and pay said tax, with such taxes being added to the price payable by the Buyer. Seller is not to report, collect or pay any tax which may be imposed, and Buyer is to report and pay any and all such taxes imposed, and is to hold Seller harmless thereof. Buyer agrees to provide documentation to Seller if exempt from tax at the time of order.
Validity of Pricing
- Seller retains the right, without penalty, to correct any and all typographical pricing, quantity, or description errors in any documentation prepared by the Seller.
- Unless otherwise stated on the face of the Quotation, Quotation pricing shall remain valid for a period of (90) days from the date of Quotation.
- The sole basis of design for the Equipment shall be as stated below. No other basis of design shall be considered to apply.
- Flumes, Manholes, and Weirs
- Unless otherwise expressly indicated by the Buyer to the Seller at the time of quotation, electrical systems and items are for general purpose locations only. IT IS SOLELY THE BUYER’S RESPONSIBILITY TO DETERMINE THE RATING OF THE EQUIPMENT LOCATION AND TO CONVEY ANY SUCH INFORMATION, CLASS, GROUP, DIVISION, ETC. TO SELLER AT THE TIME OF QUOTATION. Buyer agrees to indemnify, hold harmless, and defend Seller against any claim resulting from a failure of Buyer to provide written notification to Seller at the time of quotation of such conditions.
- Pad/anchoring design is outside of the Seller’s Scope of Supply and shall solely be the Buyer’s responsibility. General reference to a pad design/anchoring system may be described as part of the design calculations. Any such pad design/anchoring system is illustrative only of the Equipment’s ability to withstand specific loads and is not intended for specific use by the Buyer.
Material Safety Data Sheets (MSDS)
- The items provided by the Seller are defined as “articles” under OSHA Hazard Communications Standard 29 CFR 1910.1200(c).
- The Hazard Communications Standard provides an exemption for articles [CFR 1910.1200(b)(6)(v)] which constitute manufactured items: (i) which are formed to a specific shape or design during manufacture; (ii) which have end use function(s) dependent in whole or in part upon its shape or design during end use; and (iii) which under normal conditions of use does not release more than very small quantities, e.g., minute or trace amounts of a hazardous chemical, and does not poses a physical hazard risk to employees. As such, no MSDS sheets are required by 29 CRF 1910.1200 and none shall be provided.
Ownership of Materials, Molds, and Tooling
- All tools, dies, patterns, molds, plugs, and similar items required to produce the Equipment shall remain the Seller’s property. Buyer shall indemnify and save Seller harmless from and against any and all loss, liability, damage, injury, or expense (including attorney’s and expert witness fees) for actual or alleged infringement of any letters of patent, trademarks, or corresponding right relating to the manufacture and sale of goods manufactured in accordance with patents, designs, or design information provided by Buyer.
- All tools, dies, patterns, molds, plugs, and similar items billed to Buyer are for use only. All such Equipment shall remain Seller’s property.
- All devices, designs (including but not limited to: drawings, plans, and specifications), estimates, prices, notes, electronic data and other documents or information used, prepared or disclosed by Seller, and all related intellectual property rights, shall remain Seller’s property. Seller grants Buyer a non-exclusive, non-transferable license to use such material solely for Buyer’s use of the Equipment. Buyer shall not disclose any such material to third parties not directly involved with the approval process without Seller’s prior written consent nor use such information for any other purpose, including, but not limited to duplication of goods.
- The Buyer grants the Seller the limited right to use the name, trade names, trade marks, service marks, or logos of the Buyer after the completion of the Equipment for installation advertisement purposes only. The Seller may only use such devices in a general way and shall not disclose or convey proprietary information regarding the application of the Equipment to any third party.
- Products sold by Openchanneflow shall be as warranted in the latest version of its FiberLock warranty.
Jurisdiction, Venue, and Governing Law
- This Agreement is made with reference to and shall be construed in accordance with the laws of the State of incorporation of the Seller. If a dispute arises under this Agreement, the parties agree that jurisdiction and venue of any such disputes shall be in the courts of the Seller’s state of incorporation, in the county of the Seller’s operations.
- Items of the Seller’s manufacture shall be covered by any Seller’s completed products policies in effect at the time of sale, subject to any and all restrictions that may be in place by the policy underwriter. This coverage shall follow the owner of the Title to the Equipment during the warranty period, whether that be the Buyer or the Buyer’s customer(s). Due the complexity and expenditure of capital and human resources required, the Seller shall not additionally list any party as a named group under such policies in so far as they are covered under such policies.
- Neither party shall assign its rights under this Agreement, except that Seller may subcontract portions of the work to be performed under this Agreement, and may assign its right to receive payment under this Agreement to its lenders.
- Delays in Production of the Work
- The Quotation price is based on scheduled and continuous production of the work. Buyer shall be responsible for such additional costs and/or delays as may be incurred by Seller resulting from Buyer’s failure to approve submittals promptly, or give the necessary releases to purchase materials and proceed with fabrication and shipment, as well as any other Buyer/Owner delay.
- Should Buyer request a hold in fabrication after submittal approval, all costs associated with removal of order from production, storage, rescheduling, reconditioning, and restoring Equipment to production after removal of Buyer’s hold, etc. shall be at Buyer’s expense, with Buyer agreeing to pay any and all such charges. All parties shall agree that Seller shall assume no responsibility whatsoever for any delay or the consequences thereof, in restoring order to production.
- Equipment Location(s)
- Unless specifically directed by the Buyer at the time or order or submittal release (when a submittal has been generated by the Buyer), the location(s) of equipment shall be as dictated by the Seller.
- Project plans, sheets, or other direction not conveyed to the Seller at the time of order (or release - above), shall not obligate the Seller to modify, change, or otherwise accomodate the Buyer with changes in equipment location.
- The Buyer agrees and understands that the Products offered by the Seller are bespoke to their particular application. Should the Buyer cancel the order at any time, for any reason other than failure to obtain submittal approval, the Seller shall be entitled to the recovery. This recovery shall include, but not be limited to: material costs, expended labor, lost production time opportuntiy costs, and full profit.
- Should the customer cancel the order after completion, but prior to packaging, shipping and handling shall not be due to the Seller unless the Seller has incurred costs associated with the obtaining of shippinng methods, materials, etc.
- Back Charges
- Any repairs, modifications, or other work ordered by the Buyer without consulting Seller in advance and allowing Seller to conduct the work, if necessary, shall be at the Buyer’s own expense. No claim for back charges will be honored by Seller for any reason if Seller determines the work was outside of the scope of supply of the Agreement or Warranty, or Seller was not given the opportunity to 1) determine that the work needed to be done, 2) conduct the work by Seller’s personnel, or 3) make arrangements for suitable personnel to conduct the work.
- Buyer shall indemnify, defend, and hold Seller harmless from any and all claims or liability (including attorney’s and expert witness fees) arising out of performance of this Agreement or use of the Equipment sold hereunder, in respect to personal injury or death or property damage, to the extent caused by the negligence of the Buyer, its affiliates, officers, directors, employees or agents, or any third party. Neither party shall be liable for indirect, special, punitive, or consequential damages of any nature.
- If any provision, term or condition of these Terms and Conditions are determined to be void for any reason under law, that provision shall be severed from the remainder of the Terms and Conditions, and the remainder shall continue in full force and effect.
- Except as expressly agreed in writing signed by Seller, the terms and conditions state above shall constitute the entire sales agreement between the Seller and the Buyer.
- Any contrary or additional terms or conditions submitted by the Buyer shall be deemed to be of no force or effect and are hereby rejected.
- Buyer’s submission of a purchase order - regardless of any contrary terms and conditions listed - shall indicate Buyer’s acknowledgement of and agreement with these Terms and Conditions.