Throughout these Terms, “Fralock” refers to Fralock Div., Lockwood Industries, Inc.These Terms apply in lieu of, and may not be altered by, any course of dealing between the parties or usage of trade in the industry. Any alteration of these terms and conditions requires written approval by a Fralock corporate officer, acting in that capacity.
These Terms may in some instances conflict with some of the terms and conditions affixed to the Buyer’s order or other procurement document issued by the Buyer. In such case, the Terms proposed in Buyer’s document are hereby specifically rejected, the Terms contained herein shall govern, and acceptance of Buyer’s order is conditioned upon Buyer’s acceptance of the terms and conditions herein, irrespective of whether the Buyer accepts these conditions by a written acknowledgement, by implication, or acceptance and payment of products ordered hereunder. Fralock’s failure to object to terms of any Buyer order or other communication does not waive the conditions of sale outlined herein.
Except as specified below, products sold hereunder shall be free from defects in materials and workmanship and shall conform to specifications accepted in writing by Fralock. Unless otherwise stated on the product packaging, products are warranted for a period of one (1) year from the date of shipment of the products. The warranty does not apply to any products which have been subject to misuse, neglect, accident or modification.
THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUYER HAS EXAMINED OR REFUSED TO EXAMINE THE EQUIPMENT, PARTS AND SOFTWARE DESCRIBED HEREIN OR SAMPLES OR MODELS OF EACH AS FULLY AS DESIRED AND THAT THERE IS NO IMPLIED WARRANTY WITH REGARD TO ANY CONDITION OR DEFECT WHICH AN EXAMINATION OUGHT TO REVEAL.
No representation or warranty, express or implied, made by any sales representative, sales material, product catalog, distributor, or other agent or representative of Fralock, which is not specifically set forth herein shall be binding upon Fralock. Published dimensions in catalogs and brochures are for reference only. All critical dimensions and performance characteristics should be verified with Fralock before placing an order. Fralock shall not be liable for any incidental or consequential damages, losses or expenses directly or indirectly arising from the sale, handling, qualification or requalification, installation, application, or use of the goods or from any other cause relating thereto. Fralock’s sole obligation and Buyer’s sole remedy for products failing to comply with this warranty shall be, at Fralock’s option, to either repair, replace or issue credit for the nonconforming product where, before the expiration of the warranty period, (i) Fralock has received written notice of any nonconformity; (ii) after Fralock’s written authorization, Buyer has returned the nonconforming product to Fralock; and (iii) Fralock has determined that the product is nonconforming and that such nonconformity is not the result of improper installation, repair or other misuse. Fralock shall have sole discretion in its determination as to whether its products are defective.
Buyer warrants that the product will be used in accordance with the specifications given to Fralock, and agrees to indemnify Fralock for any liability resulting from the failure of the product if the product is improperly installed, abused, or used in any manner other than as agreed upon with Fralock.
Buyer agrees that these remedies provide Buyer and its successors with a minimum adequate remedy and are their exclusive remedies, whether Buyer’s or its successors’ remedies are based on contract, warranty, tort (including negligence), strict liability, indemnity, or any other legal theory, and whether arising out of warranties, representations, instructions, installations, or non-conformities from any cause. Buyer shall inform any third-party Buyer in writing of the warranty limitations on Fralock products.
All returns and allowances must be authorized by Fralock in advance. Fralock will assign a Returned Material Authorization (RMA) number which must appear on all related papers and the outside of the shipping carton. Product returned without prior authorization by Fralock will not be accepted.
Acceptance of orders by Fralock is subject to credit approval and other terms that may be set by Fralock. Buyer’s credit will be established at the time of order.
If Fralock elects to extend credit terms, those terms will be communicated and will be noted on Fralock’s sales order. If the Buyer defaults on any payments, Fralock reserves the right to defer delivery or cancel any or all open orders with the Buyer. In the event Buyer fails to make payment by the date provided in these terms of sale, the Company may deduct such amounts due it from all amounts, whether matured or unmatured, it may owe Buyer arising from this or any other transaction.
All invoices paid after the date due may be assessed a late payment service charge of 18% per annum or the maximum allowed by applicable law, whichever is lower..
Until invoice is paid in full Buyer hereby grants Fralock a security interest in product sold hereunder in accordance with the Uniform Commercial Code.
Fralock will not be bound by any endorsement or statement on any payment or in any letter accompanying a payment. The payment will not constitute an accord and satisfaction and Fralock’s acceptance of the payment will not limit Fralock’s right to pursue full payment and remedies.
Fralock reserves the right to suspend performance of any order or require payment in cash, security, or other adequate assurance satisfactory to Fralock when, in Fralock’s opinion, the financial condition of buyer or other grounds for insecurity warrant such action.
In the event that Fralock is required to bring legal action to collect delinquent accounts, Buyer agrees to pay reasonable attorneys fees and costs of suit.
Shipping and handling charges will be added to all invoices unless the Buyer has specified a carrier and agreed to charge carriage to their account with the carrier. Fralock assumes no responsibility for tariff classifications on carriers.
At the time the order is placed, the Buyer will be liable for a cancellation charge equal to the contract price of the product or, at the sole discretion of Fralock, a lesser charge, depending upon the degree of completion and the expenses or liabilities incurred by Fralock at the time the cancellation notice is received. No cancellation or termination shall be effective until acknowledged in writing by Fralock.
Fralock shall have the right to cancel any unfilled order without notice to Buyer in the event that Buyer becomes insolvent, adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statute, petitions for assignment for the benefit of creditors, or becomes unable to meet its financial obligations in the normal course of business.
5. Revised Shipping Dates:
Buyer may reschedule a product without penalty if the proposed shipping date is within thirty (30) days of the Ship Date specified in Fralock’s Order Acknowledgement and at least seven days remain between the date of request and the new shipping date. Changes to the delivery date within 7 days of a Confirmed Shipping Date must be approved in writing by a Fralock representative, and may be subject to special charges. Fralock reserves the right to ship product up to five (5) days in advance of the agreed shipping date.
6. Taxes and Other Charges:
Unless otherwise stated herein, the prices specified herein do not include any federal, state, municipal, or local property, license, privilege, business, occupation, stamp, documentary, sales, use, excise, gross receipts, duties, or custom charges, testing fee, value added or other similar taxes, or other charge of any nature which may now or hereafter be applicable to, measured by, or imposed by any governmental authority or with respect to (1) the transaction described herein or any contract of sale resulting therefrom, or (2) the equipment, parts or software described herein or their sale, value, or use, or (3) the performance of any services described herein. If the transaction is exempt from tax, Buyer shall provide the Company with a tax exemption certificate or other documentation acceptable to the taxing authorities involved. Otherwise, Buyer agrees to pay or reimburse to the Company within thirty (30) days of Company’s written notice to Buyer any such taxes and all penalties and interest in connection therewith which the Company or the Company’s subcontractors or suppliers are required to pay. Under no circumstances shall Company be responsible for any income and/or payroll taxes attributable to Buyer and/or Buyer’s subcontractors. Buyer hereby agrees to indemnify Company for any liability arising out of income and/or payroll taxes attributable to Buyer and/or its subcontractors.
7. Penalty Clauses:
Buyer order contracts showing penalty clauses for failure to meet shipment dates are not acceptable to Fralock and are hereby rejected.
All quotations automatically expire after 30 days from the date of issue. Verbal quotations expire upon Fralock’s close of business on the day they are made. To be valid, a quotation must be specific as to the goods, quantity, price, and terms. Quotations are subject to change prior to acceptance of an offer from Buyer. Any order that is rescheduled at Buyer’s request is subject to a price change immediately.
All clerical errors are subject to correction. Buyer’s payment of Fralock invoices containing pricing errors will not relieve Buyer’s obligation to make full payment of the prices in effect at the time of shipment.
9. Assistance to the Buyer:
Any information or assistance given by Fralock or its employees to the Buyer is done in good faith on the basis of limited knowledge and experience. Fralock makes no representation or warranty, expressed or implied, as to the quality of the assistance or information given.? Buyer warrants that it has not relied on such assistance.
10. Freight and Title to Goods:
All prices quoted are FOB Fralock plant in Valencia, California. Title to goods passes to the Buyer upon Fralock’s delivery of product to the carrier. Buyer thereafter assumes all risks of ownership. Any claim for loss or damage in transit shall be against the carrier only. Shipments will not be insured unless specifically requested on the Buyer’s order, chargeable to Buyer’s account, and agreed to by Fralock in writing.
Delivery dates are approximate and are dependent upon (1) prompt receipt by Fralock from the Buyer of all required technical information and data, including drawing approvals, and all required commercial documentation necessary to permit Fralock to proceed with the work immediately and without interruption, (2) Buyer’s compliance with all of the payment terms specified herein, and (3) Buyer’s compliance with any terms, obligations, covenant or condition of this Agreement, the continuing validity of any representation furnished to Fralock by Buyer, Buyer’s continuing solvency and, the non-occurrence of any event which Fralock deems, in its exclusive discretion, to endanger Buyer’s full performance of its acceptance of an offer of sale. Partial deliveries shall be permitted.
12. Written Orders:
Buyer agrees to provide a written offer to buy, identifiable to Buyer and signed by a representative who is authorized to commit funds. At a minimum, the Buyer order must contain the Buyer order number, date of issue, part numbers, quantity, price, and requested shipping date.? Buyer further warrants that it will notify Fralock of incapacity of a purported agent within 48 hours of transmission of Fralock’s order acknowledgement to Buyers last known e-mail address.
13. Force Majeure
Fulfillment of any order is contingent upon the availability of materials. Fralock shall not be liable for any delay in delivery or for non-delivery in whole or in part caused by the occurrence of any contingency beyond the control of either Fralock or suppliers to Fralock including, but not limited to war, sabotage, acts of civil disobedience, failure or delay in transportation, act of any government or agency or subdivision thereof, judicial action, labor dispute, fire, accident, explosion, epidemic, quarantine, embargo, restrictions, storm, flood, earthquake or acts of God, shortage of labor, fuel, raw material or machinery or technical failure where Fralock exercised ordinary care in the prevention thereof. The foregoing provision shall apply even though such causes may occur after Fralock’s performance has been delayed for other causes. If any contingency occurs, Fralock may allocate production and deliveries among Fralock’s customers.
If Fralock, in its sole discretion, determines that Fralock’s performance hereunder would result in a loss to Fralock on this sale, as computed under Fralock’s normal accounting procedures, because of causes beyond Fralock’s control, then Fralock may terminate this agreement in whole or in part without liability for any delay in the delivery of or failure to deliver the goods sold hereunder.
If Fralock, in its sole discretion, elects to proceed with production at the end of any contingency period, the anticipated shipping date shall be deemed extended for a period of time equal to the time lost due to any delay excusable under this provision.
14. Patents and Intellectual Property
(a) Indemnification: Fralock makes no warranty that products sold hereunder will not infringe any intellectual property rights. Buyer warrants that it has sole design authority for the product ordered, that it has the right to make, sell, and use such products, and that it will defend any suit or proceeding brought against Fralock based on a claim that any product furnished hereunder constitutes an infringement of any U.S., Canadian, Japanese, EU or EFTA member country intellectual property rights.
(b) Intellectual Property: Except as required by law, neither party shall use (except for purposes connected with the performance of its obligations hereunder), divulge or communicate to any third party any information of the other it reasonably knows to be confidential. The sale of any products hereunder does not convey any license by implication, estoppel or otherwise covering combinations of the products with other equipment data or programs. Fralock retains all rights, including copyright, trade secrets, and rights in technical data in all documents, catalogs and plans supplied to Buyer pursuant to or ancillary to the contract. Unless otherwise agreed in writing, Buyer shall obtain no interest in tooling used in the production of any Fralock product.
15. Data Retention
Fralock will purge details of customer orders 5 years after delivery of the product. If you need to retain documents for a longer period, your purchase order must include a list of specific records which will be delivered to you with the product.
16. Life Support:
Fralock’s products are not authorized for use as critical components in life support devices or systems without the express written approval of an officer of Fralock. As used herein: (a) Life support devices or systems are devices which (i) are intended for surgical implant into the body, or (ii) directly support or sustain life and whose failure to perform when properly used can be reasonably expected to result in significant injury to the user; (b) a critical component is any component in a life support device or system whose failure to perform can be reasonably expected to cause the failure of the life support device or system or to affect its safety or effectiveness.
17. Nuclear Use:
Buyer represents and warrants that the goods covered by this contract shall not in conjunction with, or as a part of, any activity or process involving nuclear fission or fusion or any use or handling of any material defined in Chapter 2 of the U.S. Atomic Energy Act of 1954, as amended. If such use is contemplated by Buyer or others, Buyer shall prior to such use, at its expense, arrange for insurance and governmental indemnity satisfactory to the Company protecting the Company against liability of any kind, whether in contract, tort (including negligence) or otherwise. If Buyer is unable to make such representation and warranty, then Buyer agrees to indemnify and hold harmless Seller and to waive and require its insurers to waive all right of recovery against Seller for any damage, loss, destruction, injury or death resulting from a “nuclear incident”, as that term is defined in the Atomic Energy Act of 1954, as amended, whether or not due to Seller’s negligence.
18. Export Regulations
Buyer agrees to comply fully with all laws and regulations concerning the Buyer and sale of products. In particular, Buyer agrees to comply with the Export Administration Regulations of the United States in so far as they apply to the sale of products. The products are licensed by the United States for delivery to the ultimate destination as shown on the shipment/invoice address and any contrary diversion is prohibited.
THE EXPORTATION FROM THE UNITED STATES OF PRODUCTS, COMMODITIES OR TECHNICAL DATA SOLD, FURNISHED OR DELIVERED TO BUYER BY FRALOCK AND THE RE-EXPORTATION OF SUCH ITEMS FROM ANY OTHER COUNTRY MAY BE PROHIBITED OR RESTRICTED UNDER U.S. FEDERAL LAWS AND REGULATIONS. ACCORDINGLY, NO EXPORTATION OF SUCH PRODUCTS, COMMODITIES OR TECHNICAL DATA FROM THE UNITED STATES AND NO REEXPORTATION THEREOF FROM ANY OTHER COUNTRY SHALL BE PERMITTED, EXCEPT IN ACCORDANCE WITH U.S. LAW.
This provision constitutes an independent covenant and continuing obligation of Buyer which will survive the termination of this Agreement. Additionally, no contract of sale based on this offer of sale will constitute a waiver of any provision in Buyer’s distribution or reseller agreement, if any, with Fralock.
19. Safety Data Sheets (“SDS”)
SDS for applicable products sold by Fralock are available upon request.? Please request at time of order. If requested after placement of order, please contact customer service at 661-702-6999.
20. Assignment and Subcontracting
Fralock shall be entitled at all times to assign its rights under the contract (in whole or in part) or to subcontract any part of the work or services to be provided under the contract as it deems necessary or desirable. Buyer shall not assign or delegate any or all of its duties or rights hereunder without Fralock’s prior written consent.
Any notice to Buyer hereunder shall be deemed to have been given if sent by prepaid first class mail to the last known address in Fralock’s customer database. Notice to Fralock shall be to Fralock Div., Lockwood Industries, Inc., Attn: Sales Manager, 28525 W. Industry Dr., Valencia, CA 91355.
Modifications to the Agreement may be made only in writing signed by each party.
23. No Waiver
Any waiver by Fralock of a breach of any term or condition of sale shall not constitute a waiver or prejudice Fralock’s right to otherwise subsequently demand strict compliance with that or any other term or condition of this offer of sale. The election of Fralock to pursue any remedy provided in an accepted offer of sale as provided by law shall not exclude pursuit of any other remedy otherwise available to Fralock or limit its right to declare Buyer in default.
24. Applicable Law and Venue
This offer of sale may only be accepted in Los Angeles County, California and any contract of sale resulting from it shall be performable, in whole or in part, in Los Angeles County, California. This offer of sale and any contract of sale resulting from it shall in all respects be governed, construed, and enforced in accordance with the laws of the State of California, U.S.A. Venue for all proceedings arising out of this offer of sale or any contract of sale resulting from it shall be in Los Angeles County, California (or in the Central District of California if such proceeding is in a United States District Court). The United Nations Convention for the International Sale of Goods is disclaimed and excluded from any contract of sale arising from this offer of sale.
25. Attorney Fees and Costs.
In the event of Fralock’s enforcement of any term or condition in the Agreement, Buyer shall be liable to Fralock for all costs, including attorney fees, incurred by Fralock in enforcing the Agreement and in collecting any sums owed by Buyer.
26. Entire Agreement:
The terms and conditions of sale contained herein shall be the only terms and conditions applicable to the sale of the equipment, parts, software and services described herein and shall supersede any prior discussions, proposal, quotations, negotiations, agreements or writings.
Rev. 1.3 (12/30/2016)