Birmingham Fastener Terms and Conditions of Sale
This sale by Birmingham Fastener & Supply, Incorporated, Huntsville Fastener and Supply, Incorporated, Dallas Fastener, Inc., or its affiliates and subsidiaries (“SELLER”) to the party denoted on the acknowledgment or invoice as Purchaser (“PURCHASER”) is subject to the following terms and conditions.
1. Integration and Modification
This writing is the sole and complete agreement between SELLER AND PURCHASER. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement shall not be relevant or admissible to determine meaning of this agreement even through the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity to make objection. No representations, understanding, or agreements have been made or relied upon in the making of this agreement other than those specifically set forth herein. This agreement can only be modified by a writing signed by all of the parties hereto or their duly authorized agents. SELLER shall not be bound by any additional provision or provisions at variance herewith that may appear in PURCHASERS purchase order, acknowledgement or in any other communication from PURCHASER to SELLER, unless such provision is expressly agreed to in writing signed by SELLER. SELLER’S acceptance of payment for goods shall not constitute acceptance of any counter proposal, purchase order or other communication from PURCHASER to SELLER, not otherwise accepted in writing by SELLER.
2. Applicable Law
This agreement shall be construed in accordance with the laws of the State of Alabama, U.S.A.
All prices are F.O.B. place of shipment, unless otherwise specified. All prices are subject to change should our labor or materials costs increase, and PURCHASER acknowledges that SELLER’S prices may be adjusted to reflect such cost increases at the time of shipment. The price herein does not include any duties or sales, use, excise, or similar taxes, now or hereafter in effect, and PURCHASER assumes full responsibility for payment of all such duties and taxes. All storage charges which may be incurred while goods are in the possession of a common carrier are the responsibility of PURCHASER.
All payments are to be made in the United States currency. SELLER reserves the right to restrict or alter the terms of payment or to require payment prior to time of shipment if in SELLER’S opinion PURCHASER’S financial condition or other circumstances do not warrant shipment on the terms originally specified in the contract. If PURCHASER fails to make payment in accordance with these terms or fails to comply with any other provision hereof, SELLER may at its option, in addition to any other remedies, cancel any unshipped portion of an order, and PURCHASER shall remain liable for all unpaid amounts. In the event PURCHASER fails to make payment in accordance with these terms, the account shall be deemed to be delinquent and a late charge of one and one-half percent (1&1/2%) per month will be assessed on the unpaid balance. PURCHASER agrees to pay all collection costs and expenses, including attorney’s fees, incurred by SELLER in collecting or attempting to collect such account.
5. Fair Labor Standards Act
We hereby certify that these goods were produced in compliance with all applicable requirements of Sections 6,7, and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.
SELLER’S dispatch of the acknowledgement or invoice constitutes acceptance of PURCHASER’S order, which order becomes non-cancellable upon such dispatch, unless SELLER shall consent in writing, and unless PURCHASER shall pay a minimum charge of 15% of the price of the cancelled portion plus the costs of any special parts manufactured or purchased specifically for that portion of this Agreement which has been cancelled, plus any sales expenses incurred by SELLER, plus all transportation and carrier charges incurred incident to the cancellation.
7. Inspection and Warranty
PURCHASER shall inspect all goods promptly upon receipt thereof, SELLER warrants that goods shall conform to the description thereof and are produced in compliance with Acceptable Quality Level Standards of the Industrial Fastener Institute as published from time to time amended. SELLER will, at its option, repair, replace or issue a credit to PURCHASER for any nonconforming goods, but only upon and in accordance with the following terms.
- PURCHASER shall give to SELLER written notice, in reasonable detail, of the nonconformity of the goods within thirty (30) days after the date of delivery thereof, or, if such nonconformity cannot reasonably be discovered within such thirty (30) day period, notice shall be given within ten (10) days after the date of discovery of such nonconformity.
- PURCHASER shall deliver to SELLER, at its own expense and risk, within sixty (60) days of the date of delivery of the goods, or within sixty (60 days after the date of discovery of the nonconformity, as the case may be a typical sample lot of said goods, pursuant to the Acceptable Quality Level Standards as to “Sample Size” of the Industrial Fastener Institute. “Typical sample lot” shall denote a random sample, not a sample of the nonconforming parts only.
- SELLER will process all complaints within thirty (30) Days of the receipt of the aforesaid sample, and notify PURCHASER of its testing as soon thereafter as is practicable.
- Evaluation of the typical sample will be made by SELLER in accordance with the Acceptable Quality Level Standards of the Industrial Fastener Institute, and PURCHASER agrees to abide by such evaluation as conclusive proof of the quality of the delivered goods.
This warranty shall in any event expire six (6) months after delivery, and, after such time, SELLER shall have no further liability hereunder. Any action to enforce such warranty shall be commenced within one (1) year after the date of delivery. Liability hereunder does not include, and under no circumstances shall SELLER be liable for, labor charges or incidental or consequential damages. THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY EXCLUDED. PURCHASER’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO NONCONFORMING GOODS AND BREACH OF WARRANTY ARE HEREIN ABOVE SET FORTH.
8. Shipment and Delivery
Delivery, shipment and installation dates are estimated dates only. No allowance Is made, nor shall SELLER be liable directly or indirectly for delays of carriers or delays caused by labor difficulties, shortages, strikes, stoppages, fires, accidents, failure or delay in obtaining materials or manufacturing facilities, acts of any government affecting SELLER in any way, bad weather, causes beyond SELLER’S control, acts of God, force majeure. In all of the foregoing events, the estimated delivery date shall be extended accordingly. SELLER shall not be liable for any damages or penalties, whatsoever, whether direct, indirect, special, consequential, or otherwise resulting from SELLER’S failure to perform or delay in performing. Unless otherwise specified, delivery may be made in a single lot or several lots. If delivery is made in lots PURCHASER shall pay, upon the tender of each lot, that portion of the purchase price bearing the same ratio to the whole purchase price as the quality of each lot bears to the entire unconcealed order. Unless otherwise specified hereof goods will be boxed or crated as SELLER may deem proper for protection against normal handling and extra charge will be made for preservation, waterproofing and similar added protection of goods and routing and manner of shipment will be of SELLER’S discretion, and may be insured at PURCHASER’S expense, value to be stated at order price. In the absence of a separate “Ship to” designation on the face hereof, SELLER is authorized to ship to PURCHASER at its address shown on SELLER’S records. SELLER may decline to deliver, except for cash, or stop goods, in transit whenever for any reason doubt as to PURCHASER’S financial responsibility develops, or under the circumstances specified in Paragraph 4 thereof.
9. Risk of Loss
Identification of the goods subject to this Agreement, under the Uniform Commercial Code occurs upon SELLER’S transmittal of the invoice to PURCHASER. All shipments are F.O.B. SELLER’S plant or warehouse. Risk of loss of or damage to the goods shall pass to PURCHASER upon delivery by SELLER to the initial carrier, not withstanding any right of PURCHASER to cancel or return goods under Paragraphs 6 or 7 hereof. In the event SELLER is forced to delay delivery of the goods to the initial carrier, due to any action or request of the PURCHASER, risk of loss shall have passed upon the date SELLER would have otherwise delivered the goods to the initial carrier. PURCHASER agrees to pay all reasonable storage and insurance charges specified by SELLER in the event goods are returned pursuant to Paragraphs 6 or 7 hereof, risk of loss shall remain upon the PURCHASER until the goods are delivered to SELLER’S plant. PURCHASERS agree to indemnify and hold harmless SELLER from any loss of or damage to the goods, or consequences thereof, sustained while the risk of such loss or damage remains upon PURCHASER.
10. SPECIAL MANUFACTURE
In the event that the goods hereunder are indicated as “Special Manufacture”, the following terms apply, cumulatively with all other terms hereof except that the terms of this Paragraph 10 shall supersede any conflicting terms hereof. The equipment and materials manufactured by SELLER under Special Manufacture terms shall be manufactured in substantial conformance with the specifications furnished by PURCHASER. PURCHASER shall indemnify, save and hold harmless SELLER from any and all claims, demands, liabilities, damages and costs resulting from or connected with any claim of infringement arising our of the manufacture by SELLER of said goods or any claim that the goods manufactured by SELLER or the items into which the goods are incorporated are defective with respect to their design or function.
PURCHASER’S remedies with respect to defective or nonconforming goods, are solely limited to its rights under Paragraph 7 hereof. Upon failure of PURCHASER to make payment of the contract price, or any part thereof, when due or upon breach of the contract the entire unpaid balance shall, at the option of SELLER at once become due and payable. SELLER may take all lawful measures to remedy the damages suffered if by reason of PURCHASER’S breach, including, not by way of limitation, the right to take possession of the goods not paid for. PURCHASER hereby waives all claims, damages and demands against SELLER arising out of repossession of goods.
This contract shall be deemed accepted in Alabama, at the time and on the date when the acknowledgement or invoice is deposited in the United States mail or is otherwise dispatched for SELLER’S plant, warehouse or office.