Terms and Conditions of Sale
1. General. Customer acknowledges that these terms and conditions of sale (these “Terms”) are the only terms which govern the sale of goods (“Goods”) by Precision Formed Plastics (Seller) to the buyer of the Goods (Buyer). Any additional terms and conditions set forth in any purchase order or other Customer – issued documents are expressly excluded from these terms. The accompanying proposal (the “Proposal”) and these Terms (collectively this “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Any reference by Precision Formed Plastics to Buyer’s PO number or other Buyer- provided information is for clerical purposes only. No Other Contractual Relationship. Buyer expressly acknowledges that it desires a contractual relationship with Precision Formed Plastics and that Precision Formed Plastics is providing product solely to the Buyer for its own use and satisfaction. Terms and Conditions can only be modified in writing and must be specifically agreed upon in writing.
2. Contractual Obligations. Contractual obligations are limited to the relationship between Buyer and Precision Formed Plastics. Buyer acknowledges that Precision Formed Plastics expressly disclaims (1) any of the Buyer’s contractual obligations to any other party, and (2) all representations that any of its products conforms to any third-party document, contract or contractual specification. Quotation Expiration: Unless otherwise noted, quotes are valid for 30 days.
3. Price. Quotations and pricing set forth in the Proposal are prepared based upon information/data supplied by the Buyer to Precision Formed Plastics. All elements of the proposal, including pricing, lead time, and estimated freight, are subject to change if receipt of new information is materially different from information utilized to develop the pricing and Proposal.
4. Taxes. All prices are exclusive (with the exception of Goods shipped within the state of Nevada) of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any government authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges shipped outside of the state of Nevada.
5. Delivery and Lead Time. Buyer acknowledges that all lead times provided by Precision Formed Plastics are dependent upon the quantity and complexity of the order, including the need for custom tooling and Precision Formed Plastics’ production backlog, and are purely estimates that may change at Precisions Formed Plastics’ sole discretion. Unless otherwise noted, production lead times commence upon last receipt from Buyer of: (1) Fully executed PO or signed Seller’s proposal; (2) Pre-production or pre-shipment deposit if required; and (3) any approvals required from Buyer. Estimated lead time may change if Precision Formed Plastics’ backlog materially changes prior to such last receipt. Actual ship date is dependent upon receipt of pre-shipment deposit. The Goods will be delivered within a reasonable time after the receipt of signed Seller’s proposal or Buyer’s PO, subject to the availability of the finished Goods. Unless agreed in writing by the Seller and Buyer, Seller shall deliver the Goods to the delivery address provided by the Buyer using Seller’s standard methods for packaging and shipping such Goods. Buyer taking delivery of Goods constitutes acceptance of such Goods. In the event of product deficiency or defects, Buyer shall provide written documentation of said deficiency or defect to the Seller within 5 business days. Buyer shall be responsible for all offloading costs and shall provide equipment and labor reasonably suited for receipt of the Goods at the delivery address.
6. Delays. Any delay caused by factors outside of Precision Formed Plastics’ control, including submittals or approvals, may increase lead time.
7. Order Quantities. Buyer is responsible for calculating all final quantities. In the event that Precision Formed Plastics provides any guidance regarding quantities, Precision Formed Plastics assumes no responsibility and makes no warranty, express or implied, that such quantities are sufficient to meet the needs of the Buyer. If Buyer changes any material aspect of the order after submission to Precision Formed Plastics, an adjustment in the price and/or a change in the shipment schedule for such goods may be made by Precision Formed Plastics, and Buyer shall be bound by any resulting price change or schedule adjustment.
8. Cancellation. After acceptance, an order may not be cancelled or altered except by agreement between parties. No employee of Precision Formed Plastics other than the Director of Sales has the authority to agree to any cancellation or alteration. Cancellation or alteration must occur in writing. In the event an order is cancelled, Buyer is liable for all finished goods, all work in process, all raw materials purchased for the goods, and any other commitment made by Precision Formed Plastics for the specific purpose of complying with the Buyer’s order. Upon cancellation, Buyer shall have no rights to partially completed products.
9. Re-Use Potential. The number of re-uses for each grade of formliner is purely an estimate and will vary depending on pattern configuration, proper handling and adherence to the Application Guide, and jobsite conditions. Additionally, re-use potential assumes that the full integrity of the formliner face is maintained (I.e., no punctures). Precision Formed Plastics assumes no responsibility and makes no warranty, express or implied, relating to the number of re-uses and/or the re-use potential.
10. Deferred Shipments. If a Buyer requests to defer or delay shipment of a partial or completed order and Precision Formed Plastics agrees to such deferral or delay, which shall be at Precision Formed Plastics’ sole discretion, Precision Formed Plastics reserves the right to invoice the Buyer for all completed goods. Storage charges may also apply, at Precision Formed Plastics’ discretion.
11. Shipping and Handling. All shipments are FOB Reno/Sparks, NV via a commercial service of Seller’s choice unless otherwise requested by Buyer. Shipments will be made in a commercially reasonable manner as determined by the Seller. Estimated freight charges (if included) to the designated zip code specified by the Buyer are based on a single shipment unless otherwise noted, and subject to change. Order changes initiated by the Buyer that result in more than one shipment or truckload may result in increased charges. Freight charges(not estimated freight) will be invoiced on the date of shipment and will be based on prevailing carrier rates at time of shipment, the required freight mode and the actual destination for the shipment. All shipping charges shall be the obligation of the Buyer and, if paid by the Seller, then set forth as a separate item on the Seller’s invoice.
12. Title Transfer and Risk of Loss. Title to the goods shall pass to the Buyer upon delivery thereof by Seller to carrier (FOB Reno/Sparks, NV). Upon delivery to the carrier, Buyer shall be responsible for and bear all risk of loss or damage to the product.
13. Purchase Money Security Interest. Seller shall be the assignee of any security interest which Buyer retains or obtains in such Goods purchased from Precision Formed Plastics until Buyer has made full payment in accordance with these Terms. In the event of Buyer’s default, Seller shall have all the rights and remedies of a secured creditor as well as those of a seller of goods, under the Uniform Commercial Code or any other applicable law, including, but not limited to, the right to take possession of the Goods.
14. Freight Damages. It is the Buyer’s sole responsibility to examine all goods for damage caused by common carrier before signing the Bill of Lading. Buyer is responsible for taking any necessary steps to pursue any freight damage claims against the carrier, and Precision Formed Plastics assumes no such liability.
15. Deposit and Payment Terms. Unless otherwise noted, a minimum of 50% deposit is required before Precision Formed Plastics either begins production or ships any order, at Precision Formed Plastics’ sole discretion. Payment terms are Net 30 days. Buyer shall pay interest on all late payments at the lesser of the rate of two percent (2%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorney’s fees. In addition to all other remedies under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for five (5) days following written notice thereof. Precision Formed Plastics shall not, in such an event, be liable for non-performance in whole or in part. Buyer shall not withhold payment of any amounts due and payable to Seller by any reason of any set-off of any claim or dispute with Seller. Any waiver or release required by Buyer shall be conditioned upon actual receipt of funds by Precision Formed Plastics.
16. Returns. All formliner is produced on a per-job basis. Therefore, all sales are final, and Precision Formed Plastics is unable to accept return of goods or products.
17. Warranty. Precision Formed Plastics warrants that the product will conform to the description contained in the Proposal and will be free from defects in workmanship and/or materials. Goods which have been subject to abuse, misuse, accident, alteration, neglect, unauthorized repair or installation are not covered by the warranty. Seller shall make the final determination as to the existence and cause of any alleged defect. No warranty is made with respect to custom goods or goods produced to Buyer’s specifications except as may be specifically stated in writing by Seller in the agreement for such custom goods. Buyer isresponsible for inspecting products for defects. If a potential defect is found, Buyer must photographically document the defect and promptly notify Precision Formed Plastics in writing of any nonconformity.
18. Limitation of Liability. The sole and exclusive remedy is limited to the replacement, repair or refund of the defective product, at Precision Formed Plastics’ sole discretion. Precision Formed Plastics shall bear no responsibility for disposal of defective product. In no event shall Precision Formed Plastics be liable for any consequential, indirect, incidental, special, exemplary, or punitive damages, loss of use, lost profits or revenues or diminution in value, arising out of or relating to the performance of, or failure to perform under this Agreement, or due to the use of or a defect in any Good or products, whether or not the possibility of such damages has been disclosed in advance by Buyer or could have been reasonably foreseen by Buyer, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose. In no event shall Seller’s aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise exceed the total of the amounts paid to the Seller for the Goods sold hereunder. This exclusion also includes any liability that may arise out of third-party claims against Buyer.
19. Miscellaneous. Precision Formed Plastics will not be liable for any loss, damages or penalty resulting from delay in delivery caused by circumstances beyond its control, including, but not limited to, modified or accelerated lead times, supplier delay, force majeure, act of God, labor unrest, fire, explosion, or earthquake.
20. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the Seller. No assignment or delegation relieves the Buyer of its obligations under this Agreement.
21. Modification. No change or modification to the Agreement except in writing and signed by senior management of Precision Formed Plastics and a representative of the Buyer.
22. Governing Law. This Agreement shall be governed and construed in all respects in accordance with the laws of the State of Nevada. Any controversy or claim arising out of or relating to this Agreement, or for the alleged breach, default, invalidity or illegality thereof shall be venued in Washoe County, Nevada, and the parties agree that all such claims be brought to binding arbitration, at either parties’ option, according to the AAA Construction Industry Arbitration Rules, and the prevailing party in any action shall be entitled to recover all reasonable costs and reasonable attorney fees. The parties agree to keep confidential the existence of the arbitration, the proceedings, the submissions, and the decisions, including the awards.
23. Designs and Trade Secrets. Any drawings, data, designs, software programs or other technical information supplied by Seller to Buyer in connection with the sale of Goods shall remain Seller’s property and be held in confidence by Buyer. Such information shall not be reproduced or disclosed to others without Sellers’s prior written consent in each particular instance.
24. Cost of Collection. In the event Buyer shall default in Buyer’s payment obligations hereunder, Buyer shall be liable for Seller’s reasonable costs of collection and attorney’s fees.
25. Photographs. The Buyer acknowledges that Precision Formed Plastics may take professional photographs of the project on which its products are being used as long as the project is located in a public space or can be accessed via public access so long as it does not violate any local, state or federal law. Precision Formed Plastics will not publish the address, logo, company name or other identifier when publishing any photographs taken of the project without the Buyer’s written consent.
Printed Name:_________________________ PRECISION FORMED PLASTICS, LLC