HD Fowler Company
TERMS AND CONDITIONS OF SALE 2020
1. AGREEMENT; ACCEPTANCE. This document (“Agreement”) contains all of the terms and conditions with respect to the sale and purchase of the material ordered by Purchaser and sold by HD Fowler Company (“Fowler”). This Agreement constitutes the entire agreement between Fowler and Purchaser; it will not be amended, altered, or changed except by a written agreement signed by both parties. Purchaser’s acceptance of the material shall conclusively evidence Purchaser’s acceptance of these terms and conditions.
2. SHIPPING AND DELIVERY. Shipment or delivery dates are estimates only. Fowler will not be liable for any failure or delay in making shipment or delivery caused by any contingency beyond Fowler’s control, or the control of Fowler’s vendors, with whom Fowler has contracted to cover this offer to sell materials to Purchaser. Such contingencies include but are not limited to: labor conditions, material shortages, carrier delays, acts of God, fire, weather, accidents, embargoes, war, insurrection, riots, government regulations, pandemics, or other causes beyond the control of Fowler and its vendors. Any time periods for Fowler’s performance under this Agreement shall be extended accordingly. When materials are sold freight on board (“FOB”) shipping point or FOB shipping point freight allowed, Fowler’s responsibility for loss or damage in transit terminates upon acceptance of material by the carrier. When sold FOB destination, Fowler’s responsibility for loss or damage terminates upon tender of delivery by the carrier. Upon receipt of shipments, it shall be the Purchaser’s responsibility to inspect materials and secure written acknowledgement from the delivering carrier for any loss or damage. Claims for incorrect materials or shortages (other than loss in transit), must be made to Fowler in writing within five (5) calendar days after receipt of shipment. Following Fowler’s receipt of notice of incorrect materials, Fowler will promptly arrange for pickup of such items at Purchaser’s location (Purchaser shall load the materials to be returned). As Purchaser’s sole remedy, Fowler will, at its election, either replace the incorrect materials or refund the purchase price paid for the incorrect materials. Notwithstanding the foregoing, Fowler shall have no responsibility for incorrect materials after installation of such items.
3. RETURNS. Except as otherwise provided herein, material may not be returned without Fowler’s prior written consent, in its sole discretion. If a return is approved by Fowler, standard items normally carried in Fowler’s stock, returned in a new condition, will be credited less fifteen percent (15%) to cover handling costs. Special items manufactured to order may not be returned. All returned material must be shipped freight prepaid and the risk of loss will remain with the Purchaser until Fowler receives the materials.
4. TAXES. Purchaser shall be responsible for the payment of all federal, state, provincial, county, local, or government taxes, including but not limited to, sales tax, use tax, value added tax, goods and services tax, or other excise tax that may be applied on the material (“Taxes”), and shall defend, indemnify and hold Fowler harmless from those Taxes. Fowler shall be responsible for any tax based solely upon its net income. Purchaser may supply Fowler with a valid Resale Certificate or other form certifying an exemption from the payment of Taxes from the taxing authority having proper jurisdiction over the order.
5. PAYMENT TERMS. Fowler will submit invoices to Purchaser upon the shipment of materials. Invoices shall be paid by Purchaser on or before the tenth (10th) day of the following month. Late payments shall accrue interest at the rate of one percent (1%) per month until paid, commencing on the first (1st) day of the month after the month in which payment was due. Prices are based on current published freight rates and are subject to adjustment if freight rates are increased. Prices include domestic packing for commercial truck shipment only. Fowler’s offer herein is subject to approval by Fowler’s Credit Department after Purchaser’s acceptance.
If Purchaser fails to comply with terms of payment or sale, or if Purchaser’s financial responsibility becomes impaired or unsatisfactory to Fowler, Fowler reserves the right to withhold further deliveries on partially filled orders and to require payment in advance or satisfactory security or guarantee that invoices will be paid when due. Purchaser agrees to accept and pay for partial shipments.
6. LIMITED WARRANTY; LIMITATION OF LIABILITY. The materials supplied hereunder are subject to the relevant third-party manufacturers’ warranties, which shall pass to Purchaser to the extent assignable. When provided reasonable notice, Fowler agrees to use commercially reasonable efforts to assist Purchaser with pursuing remedies under the manufacturers’ warranties for up to one (1) year from the date of sale, provided that Fowler shall not be required to incur any expenses. FOWLER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FOWLER SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR THE DESIGN OF THE PROJECT IN WHICH THE MATERIALS WILL BE INSTALLED. FOWLER SHALL NOT BE REQUIRED TO HOLD THE MATERIALS FREE OF THE CLAIM OF ANY THIRD PERSON BY WAY OF PATENT OR TRADEMARK INFRINGEMENT, PROVIDED THAT THE FOREGOING SHALL NOT BE DEEMED TO AFFECT ANY REMEDIES AVAILABLE TO PURCHASER UNDER APPLICABLE THIRD-PARTY MANUFACTURERS’ WARRANTIES.
IN NO EVENT SHALL FOWLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES AND/OR LOSS OF PROFITS BASED ON PRODUCT LIABILITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE. FOWLER’S TOTAL LIABILITY FOR ANY AND ALL LOSSES, DAMAGES, LIABILITIES, AND/OR INDEMNITIES ARISING UNDER OR RELATING TO THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY, SHALL BE LIMITED TO THE PURCHASE PRICE PAID TO FOWLER FOR THE APPLICABLE MATERIALS THAT ARE THE SUBJECT OF THE CLAIM.
7. INDEMNIFICATION. Purchaser agrees to defend, indemnify, and hold Fowler harmless from any and all claims, demands, losses, and liabilities to or by third parties arising from, resulting from, or connected with the material to be finished under this Agreement, even though such claims may prove to be false, groundless, or fraudulent, to the fullest extent permitted by law and subject to the limitations provided below. Purchaser’s duty to indemnify Fowler shall not apply to liability for damages arising out of bodily injury to persons or damage to property caused by, or resulting from, the sole negligence of Fowler. Purchaser’s duty to indemnify Fowler for liability for damages arising out of bodily injury to persons or damage to property caused by, or resulting from, the concurrent negligence of Fowler and Purchaser, shall apply only to the extent of negligence of Purchaser. Further, the indemnification obligation under this Agreement shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable to or for any third party under workers compensation acts, disability benefits acts, or other employee benefits acts; provided, Purchaser’s waiver of immunity by the provisions of this paragraph extends only to claims against Purchaser by Fowler, and does not include, or extend to, any claims by Purchaser’s employees directly against Purchaser. Subject to Purchaser’s duty to defend Fowler, if applicable, Fowler’s right to recovery of its defense costs shall include all fees (of attorneys and experts), costs, and expenses. In addition, Fowler shall be entitled to recover compensation for all of its in-house expenses (including materials and labor) consumed in its defense.
8. TERM AND TERMINATION. The terms within this Agreement shall survive the completion, suspension or termination of this Agreement and the exchange of material governed under this Agreement.
9. Successors and Assigns. Fowler’s successors and assigns shall be entitled to assume the liabilities and obligations, and succeed to the rights and interests, of Fowler under this Agreement at any time and without limitation. This Agreement may not be assigned by Purchaser without Fowler’s prior written consent, in Fowler’s sole discretion.
10. MEDIATION AND BINDING DISPUTE RESOLUTION. In the event of any dispute relating to this Agreement, the parties agree to enter into mediation under the Construction Industry Rules of the American Arbitration Association. The costs of the mediator shall be paid equally. The parties agree that mediation shall occur in Seattle, Washington. In the event mediation fails to resolve the dispute, the parties agree to submit any and all disputes to binding arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. The parties agree that arbitration shall occur in Seattle, Washington. In any arbitration proceeding between Fowler and Purchaser, the prevailing party shall be awarded its reasonable attorneys’ fees and costs. The parties shall mutually agree upon the mediator or arbitrator, as applicable, to be used for the dispute resolution procedures set forth above. If the parties do not mutually agree to a mediator or arbitrator, either party may apply to the King County Superior Court, requesting the appointment of a mediator or arbitrator.
11. APPLICABLE LAW. This Agreement shall be governed by and enforced in accordance with the laws of the State of Washington without giving effect to principles regarding conflict of laws.
12. Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to either party upon any breach or default of the other party hereto shall impair any such right, power, or remedy of such non-defaulting party, nor shall it be construed to be a waiver of any such breach or default or an acquiescence therein, or of any similar breach or default thereafter occurring. A waiver of a breach or default by a party shall not be deemed to be a waiver of any other breach or default.
13. SEVERABILITY. In the event any provision herein should be held unenforceable, such provision shall be deemed to be amended so that it will be enforceable to the fullest extent permitted by law, and all remaining provisions shall continue in full force without being affected, impaired, or invalidated thereby in any way.
14. Rules of Construction. The parties acknowledge that they have been represented by, or had an opportunity to consult with, competent counsel with respect to this Agreement and therefore waive the application of any law, regulation, holding, or rule of construction providing that ambiguities in an agreement will be construed against the party drafting such agreement.
15. Effect of Headings. The section headings herein are for convenience only and shall not affect the construction or interpretation of this Agreement.