American Formliners (“AF”)
Terms and Conditions of Sale and Warranty
These terms and conditions apply to all sales of AF products. These terms are specifically incorporated into any quotation or proposal issued by AF to Customer. Any terms contained in a purchase order issued by Customer which Terms and Conditions and the quote or proposal issued by AF are null, void and of no effect.
1. Purchase Price and Payment:
Quotations or proposals made to Customer by AF are only valid for a period (30) days and then only for the prices, quantities, sizes and normal shipping. Purchase orders placed beyond (30) days of the original quotation, will be priced at the then prevailing price, quantities available and delivery schedule available.
- a) Customer agrees to pay all applicable Federal, State, or Local revenue, excise, sales, transfer, use or similar
taxes, including tariffs that may be imposed on any component material which increases the cost of the Product. Customer shall provide AF with a suitable tax-exempt certificate acceptable to taxing authorities if Customer claims that the transaction is tax exempt. Customer is not obligated to pay AF’s income taxes on account on these Terms and Conditions.
- b) Customer shall pay for all non-standard, non-stock and/or made to order Product even if Customer cancels the order and the Product does not ship. Customer shall be invoiced at the time of shipment and payment is due no later than (30) days after the date of invoice. All amounts due shall not be subject to set-off, deductions, or any counterclaim made by Customer. Customer agrees to pay a service charge at the rate of 1.5% per month on all balances due after (30) days. AF may refuse to ship any Product to Customer when Customer has any invoices that are past due.
- c) Title to the Product does not pass to the Customer until all amounts due to AF are paid in full and AF retains a security interest in the product which may be formalized by filing under the Uniform Commercial Code.
2. Delivery:
The date of delivery shall be as stated in the quotation if specified, otherwise at the time that AF has the Product available for shipment. All shipments are F.O.B. at or will be AF’s place of business. Customer assumes all risks and liability for damage, delay or loss associated with the delivery and/or transportation of the Product. AF assumes no liability for loss, damage or consequential damages due to delays in shipment or failures for any reason. If Customer requests AF to arrange for shipment, then AF shall add 5% of the product price as a fee for making those arrangements. In all events Customer shall remain liable to pay all costs of shipment. In no event will AF be identified as the shipper or accept any bill of lading whereby it is identified as the shipper. For Customer pick up at AF’s facility, AF will hold the product on its docks for no more than (5) days. If Customer does not take delivery by the end of the fifth day, the product will be restocked and Customer will be charged a 25% restocking charge. If the item is a non-standard item, Customer will be billed for the full quoted price and AF will have no obligation to retain or store the product and may dispose of it in any suitable fashion.
3. Inspection and Claims:
Customer shall inspect the Product upon receipt at the destination and notify AF in writing of any shortages, damages to or defective products within (72) hours of delivery. Failure of Customer to timely notify AF of any shortages, damage to or defective products shall constitute waiver of liability against AF.
4. Limited Warranty:
For a (6) month period from the date of shipment, AF warrants that the Product sold to Customer shall be free from defect in material and workmanship. AF’s sole obligation under this warranty is to repair or replace defective product at no charge to Customer. In order to obtain the benefits of this limited warranty, Customer must return at its expense the Product or component part thereof found to be defective at the time of delivery. AF shall have no obligation under this warranty to repair or replace consumable components of the Product. AF shall also not have an obligation under this warranty if:
- a) repair or replacement is a result of normal wear and tear or necessitated in whole or in part by catastrophe or
causes external to the product;
- b) the product has been maintained, repaired, reconfigured, modified or adapted in any manner;
- c) the product has not been properly used or maintained for the purpose for which it is intended;
- d) the customer does not notify AF in writing during the warranty period with specific detail of any defect in the
product;
- e) the customer or any of its personnel have attempted to repair or replace or modify the product or any
component part;
- f) the customer is past due on any money due to AF.
This warranty is exclusive of and is in lieu of all other warranties, expressed or implied, including without limitation any warranty of merchantability or fitness for a particular purpose. This warranty is not transferrable, assignable and is void and of no effect in the event that the product is transferred by customer to any third party.
5. Limitation of Liability:
AF is not liable for its failure to fulfill its obligations due to causes beyond its control. In no event will AF be liable for any incidental or consequential damages, including but not limited to damages for loss of profit or revenue, loss of capital, claims of customer for service interruptions, or failure to supply, down time, testing or installation cost or costs of substitute products, facility or services, even if AF has been advised of the possibility of such potential damages or for any claim against the customer by any other party. Customer agrees that any basis for imposing liability on AF for property damage, personal injury or death or legal expenses relating to the sale or use of AF product shall be void and unenforceable. The total liability of AF on any claim, whether in contract, tort, including negligence or otherwise, arising out of, connected with or resulting from the manufacture, sale, delivery, repair, replacement or use of the Product or component part of the Product will not exceed the price allocable to the Product or component part thereof which gives rise to the claim. AF’s total liability to customer for damages, from any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including negligence, is limited to actual damages up to the purchase price paid for the Product or any component part thereof that caused the damages or is the subject matter of the sale of the Product or directly related to the cause of action.
6. Force Majeure:
In no event shall AF be liable for any losses or damages including incidental or consequential damages, delays or defaults occasioned by: a) acts of God or public enemy; b) acts of the United States or any states or political subdivision thereof; c) fires, floods, explosions, or other catastrophes; d) epidemics and quarantine restrictions; e) strikes, slowdowns or labor stoppage of any kind; f) freight embargos, unusually severe weather; g) delays of a supplier; h) material shortages, or i) causes beyond the control of AF.
7. Indemnification by Customer:
Customer shall be responsible for, indemnity, defend and hold AF harmless from and against all liabilities, claims, judgments, costs, damages and expenses (including reasonable attorney fees and expenses), including for personal injury, death, property damage or otherwise, arising out of or relating to the use of the Products and/or the Services and any other act, or omission by Customer or any subcontractor, agent, sublessee, employee, or purchaser of or from Customer with respect to the Products and/or Services, unless resulting from the gross negligence or willful misconduct of AF. If Customer resells purchased Products, Customer shall include language in an agreement that makes these Terms (including the limitations in paragraph 4) binding on any subsequent purchasers of the Products, including binding the purchaser to these obligations of indemnification, in addition to Customer. Customer represents to AF that it and its employees and agents are knowledgeable and experienced about the Product and familiar with the use of the Product and that they are not relying on AF or any representation made by AF, its salesman, agents, as made in any catalog or otherwise, but that Customer is relying solely on its own expertise and evaluation or expertise of its retained professionals and that Customer has made a separate and independent verification and analysis that the product will meet all standards required in the application for which Customer intends to use the Product.
8. Documentation and Product Data:
Any specifications, plans, drawings or application recommendations furnished by AF to Customer (“Documentation”) are provided only as a service to Customer to conceptually illustrate the assembly and use of Products. Such Documentation is not intended to be fully directive nor to cover all engineering details on Products, or on products or materials not furnished by AF, or on their interconnection. Inasmuch as AF does not control jobsite assembly or procedures, grade or quality of materials, and/or equipment supplied by others, it is the responsibility of Customer to integrate Documentation into composite drawings and information suitably complete for construction purposes. In the case of non-standard, non-stock, and/or made-to-order Products, design drawings will be furnished by AF for Customer approval prior to production. AF shall not be responsible for any deviations, changes or alterations to the recommended assembly details described in drawings, unless such deviations, changes or alterations are illustrated in a revised design drawing provided by AF. AF shall at all times retain ownership of all Documentation and other technical data (“Product Data”) with respect to the Products and Services, and unless authorized by AF, Customer shall not disclose any such Product Data to any other person. Upon request, Customer shall promptly return all Product Data to AF. Customer shall not reverse engineer, copy any documentation or product description or other engineering on any product sold by AF to Customer.
9. Expenses and Attorney Fees:
All costs and expense incurred by AF in connection with the enforcement of any of these Terms or any quotation, including a legal action to enforce or interpret any provision of these Terms and the quotation, shall entitle AF to the payment of all costs and expenses including reasonable attorney fees in enforcing these Terms and Conditions and the sale of any product to Customer.
10. Compliance with Governmental Requirements:
Customer must, at the time of placing its order with AF, specify any governmental regulations or specifications with respect to the product. No mere reference to government specifications or regulations shall be sufficient to include that specification or regulation as a part of sales of product to the Customer.
11. Substitutions:
AF reserves the right to make changes in design, material or accessories or component parts of the Product at any time without incurring any obligations to provide the same Product previously purchased or continue to supply obsolete product or component parts. AF reserves the right to substitute Product or component parts of product at any time provided that the substituted Product or component parts shall perform the functions intended by the original product or component parts.
12. Waiver:
Any waiver by AF of a breach on any of these Terms and Conditions and of the quote or purchase order based upon said quote, shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision. The failure of AF to insist upon strict adherence to any Term or Condition, on one or more occasion, shall neither be considered a waiver nor deprive AF of any right thereafter to insist upon strict adherence to that Term or Condition.
13. Consultation:
In the event that Customer requests that AF provide advice, consultation, or direction, in connection with the installation of or integration of the Product into or on the jobsite, then at AF’s sole discretion, AF may charge a fee based upon costs, including travel and an hourly fee. Customer shall be advised in advance that AF intends to charge a consultation fee.
14. Governing Law and Exclusive Jurisdiction:
The Contract shall be governed by, and construed in accordance with, the laws of the State of Illinois and venue for any legal proceeding or arbitration concerning this contract shall be in the Circuit Court for the Eighteenth Judicial Circuit, DuPage County, Illinois and in no other venue. Each party, knowingly and after consultation with counsel, for itself, its successors and assigns, reserve all right to trial by jury of any claim arising with respect to this agreement or any matter related in anyway thereto.
15. Miscellaneous:
These Terms and Conditions may not be amended, except in writing and only when signed by an authorized AF representative. The agreement between AF and Customer is not assignable by Customer without the prior written consent of AF. Any provisions of the agreement between AF and Customer that is invalid under applicable law or Court Order shall not in any way invalidate any remaining provisions of the Terms and Conditions. The Terms and Conditions and the agreement which arises between the parties may not in any way be explained or supplemented by a prior existing course of dealings between the parties, by any usage of trade or custom, any prior performance between the parties pursuant to the Terms and Conditions or otherwise and may not be modified in any way by subsequent orders, proposals, acknowledgments, or other communications which relate to the quote and/or these Terms and Conditions, unless specifically agreed to in in writing by AF. Obvious typographical or clerical errors made by AF or Customer, at arriving the contract purchase price, number of units/products to be provided, are subject to correction, including clerical errors made in preparation of the quotation, acknowledgments or specifications.
(rev September, 2018)
