1. OFFER AND ACCEPTANCE. All sales of product by Focus Safety Glass (“FSG”) to Customer are subject to these Terms of Sale except as otherwise expressly agreed to in a written document signed by FSG. This document, together with other documents agreed to in a written document signed by FSG, state the entire agreement of the parties and all other terms and conditions are expressly rejected. If this document is part of or incorporated by reference into a FSG sales agreement, price list, invoice or other document, it contains the entire agreement of FSG and Customer. Customer's acceptance of products shipped by FSG will constitute acceptance by Customer of all of the terms and conditions stated in this document. No other agreement, statement or promise made by FSG or proposed by Customer relating to the sale of product by FSG to Customer that is not in writing and signed by FSG is binding on FSG.
If this document is a part of or incorporated by reference into an Acknowledgement of a purchase order or other document, then this document is a rejection of any offer made by Customer and is an offer by FSG to sell to Customer the products identified at the price(s) indicated, subject to the terms and conditions stated in this document. Customer's purchase order is subject to the terms and conditions stated in this document and these stated terms and conditions supersede and replace any and all terms and conditions of Customer's purchase order. FSG's Acknowledgement is expressly conditioned on Customer's assent to the terms and conditions stated in this document and such assent will be deemed given unless FSG agrees to the contrary in a written document signed by FSG. No failure of FSG to object to any terms and conditions contained in any communication from Customer or shipment of products by a FSG will be construed as a waiver of the terms and conditions stated in this document or an acceptance of any such terms and conditions.
2. Terms and Conditions. Any FSG QUOTATION is conditioned on Buyer’s acceptance of these FSG TERMS OF SALE. Buyer shall be bound by these TERMS OF SALE without change, unless otherwise set forth in writing and accepted in writing by FSG. Any terms and conditions from any other source, including but not limited to, Buyer’s purchase orders or acknowledgments, are deemed excluded. These TERMS OF SALE shall control and take precedence over any conflicting terms and conditions in any other document. An “Order” or “Purchase Order” means Buyer’s purchase order or any other order or contract form accepted by FSG in writing.
3. Goods Furnished. FSG agrees to furnish only the quantity and type of goods described in the FSG Order Confirmation, Pro Forma or QUOTATION, which may be vary from project plans, specifications, and/or Buyer’s purchase order(s). FSG shall not be obligated to make any changes or additions to the goods described in the FSG Order Confirmation, Pro forma or QUOTATION unless FSG agrees in writing and, if necessary, an equitable adjustment is made to the price and delivery terms. Unless otherwise agreed in writing by FSG, all goods supplied by FSG under an Order, including those produced to meet an exact specification, will be subject to tolerances and variations consistent with usage of trade, regular FSG manufacturing practices or practical testing and inspection methods. Such tolerances and variations shall not create any separate FSG warranties.
4. PRICES. FSG will be bound by written price quotes it makes that are stated to be "firm" according to their terms. Unless otherwise stated in the applicable contract document signed by FSG, all of FSG's published prices and discounts, if any, are subject to change by FSG. In the event FSG changes its prices, the price of products under this document not yet shipped will be the price in effect on the date FSG received the product order provided FSG accepts the order in writing, except that if FSG agrees to delay the manufacture, production or delivery of any products upon Customer's request then, at FSG’s option, the prices of such products will be those in effect when instructions are later received from Customer to complete such manufacture, production or delivery. Any additions to an outstanding order will be accepted only at prices in effect when the additional order is accepted. All prices are based on the cost of labor, materials, transportation, rates of applicable taxes and custom duties, and other costs in effect on the date FSG agrees to the applicable pricing. FSG reserves the right, in the event of any material increases in any of its costs after such date or extraordinary increases in market prices, whether or not arising out of an event of force majeure or a failure of presupposed conditions, to adjust the prices payable upon notice to Customer.
5. Order Holds; Cancellation. After Buyer’s Order has been accepted by FSG, the Order cannot be put on hold, modified, canceled or changed without FSG’s written consent. In the event that Buyer places any Order on hold for more than thirty (30) days, Buyer shall be responsible for, and reimburse FSG for, all material, labor and overhead costs incurred by FSG as a result of the hold. If Buyer cancels any Order, Buyer shall be responsible for payment to FSG for reasonable cancellation or order change charges. Such cancellation or order change charges may include, but not be limited to, the Contract Price for all goods shipped by FSG to Buyer, the Contract Price for all finished goods inventory in the possession of FSG, all other direct costs incurred by FSG to the extent not able to be mitigated using reasonable mitigation efforts, and storage charges as outlined in Section 8 of these TERMS OF SALE. In addition, if at the time the Buyer cancels the Order FSG has work in process with respect to the Order on any of its shop floors, FSG shall be allowed to finish the production on the goods that are on the shop floor at the time the Order is canceled, place the goods in finished goods inventory, and bill the Buyer the Contract Price for such goods.
6. Other Costs. Buyer acknowledges and agrees that the Contract Price does not include manufacturer's gross receipts taxes, sales or use taxes, or any other province, local, and national taxes and/or assessments that may be payable on the transaction, unless otherwise agreed in writing by FSG. All additional delivery costs arising from local labor agreements shall be the responsibility of Buyer. Buyer further agrees that all square foot pricing is invoiced on the basis set forth in the FSG QUOTATION. FSG reserves the right to invoice Buyer for any and all unknown surcharges and miscellaneous costs assessed against FSG by its vendors after the QUOTATION date.
7. DELIVERY AND ACCEPTANCE. Delivery of products by FSG to a carrier at the FOB point will constitute delivery to Customer; and notwithstanding anything to the contrary and regardless of whether or not FSG pays the freight, all risk of loss or damage in transit will pass to Customer upon delivery to such carrier. Customer may be charged for any warehousing fees, demurrage fees, trucking and other expenses occasioned by or incident to any delays requested or made for the convenience of Customer beyond the scheduled shipping date. Product supplied by FSG must be inspected by Customer for nonconformity (including, without limitation, breakage, cracks, scratches, inclusion of foreign material, and other nonconformity or noncompliance), shortage and other errors, and all claims received in writing by FSG within the earlier of ten (10) days after receipt of a shipment at the original shipment destination or the further processing or sale of the product by Customer. Failure to make a claim within such period will constitute a waiver of all such claims by Customer, and such failure will constitute acceptance of the products. FSG must be given a reasonable opportunity to inspect alleged defective or nonconforming product, and, at FSG’s option and as FSG’s sole obligation, repair, replace or refund the price paid by Customer to FSG. If requested by FSG, the defective or nonconforming product must be returned to FSG.
8. Storage Charges. Any completed Orders that Buyer fails to accept delivery of goods by the delivery date stated on the FSG Order Confirmation shall be subject to storage charges at a rate of $150.00 per crate per month. These storage charges shall be payable by Buyer net 30 days. Under no circumstances shall FSG be liable for any costs, fees, damages or loss to goods or materials stored pursuant to this Section. FSG specifically disclaims any liability for, or damage resulting from, the storage of finished goods or materials stored hereunder in any manner contrary to industry standards or specific storage requirements identified by FSG in any product documentation.
9. Payment Terms. Payment terms for any Order shall be specified on the invoice in calendar days, with no retainage or set-off allowed. Buyer’s payment obligations shall not be conditioned on Buyer’s receipt of payment from any third party. Buyer shall be responsible for FSG’s costs of collection, including but not limited to, reasonable attorney's fees in the event of Buyer’s default or non-payment. FSG reserves the right to withhold future shipments if timely payment for prior shipments has not been received.
10. Credit Terms. FSG may, in its sole discretion, agree to grant credit terms to Buyer. If FSG exercises its option to refuse to grant credit to Buyer, FSG shall not be liable for any damage, loss or cost whatsoever to Buyer. Any credit terms are subject to FSG's continuing approval of Buyer’s credit. If, in FSG’s sole discretion and determination, Buyer’s credit or financial standing becomes unsatisfactory, FSG may withdraw or modify its credit terms.
11. Inspection. Buyer shall inspect the goods upon receipt and notify FSG in writing of any claim that the goods are nonconforming within ten (10) days after delivery. FSG shall be allowed a reasonable opportunity to inspect the goods, and cure any claim of alleged non-conformity, including reasonable access to the goods whether on Buyer’s premises, at a storage facility or on the job site. Subject to Buyer’s signing a confidentiality agreement and compliance with FSG procedures and facility safety practices, Buyer may arrange to inspect the goods at FSG’s manufacturing facilities. However, such inspection shall not interfere with FSG’s operations. Buyer’s rejection of any in-process goods or non-conforming finished goods arising out of such inspection must be made in writing to FSG prior to shipment of such goods. No goods may be returned to FSG for credit without FSG’s prior written consent.
12. Limited Warranty. FSG provides a limited warranty for goods shipped pursuant to an Order. FSG’s warranty terms are set forth in a separate warranty certificate available on request. FSG’s warranty will be void in the event that full payment is not received for goods and services within the agreed upon terms of sale. FSG's limited warranty, as provided to Buyer, may only be modified upon written approval of FSG's President or Vice President(s). Any verbal representations intended to modify any existing FSG limited warranty shall be invalid and unenforceable against FSG. Extended warranties may be available at an additional cost, and are subject to written approval of glazing details by FSG’s management and/or technical representatives at FSG’s sole discretion.
13. Disclaimers. FSG EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ANY OTHER OBLIGATION OR LIABILITY NOT EXPRESSLY SET FORTH IN ITS STANDARD TERMS OF WARRANTY. FSG SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND. Buyer’s rights and obligations regarding any goods supplied by FSG, and proven to be defective, are limited to those set forth in FSG’s Limited Warranty provided to Buyer. FSG will not accept any charge or expense submitted by Buyer or any third party, including but not limited to any labor costs for modification, removal, inspection, testing or installation of any goods sold by FSG under an Order or for any replacement goods.
14. SUITABILITY. Customer is solely responsible for determining the suitability and compatibility of Customer’s methods, processes, designs and materials used with the products and the suitability of the products for Customer’s needs and applications. Annealed glass is not suitable for use in locations identified as "hazardous" in certain building codes and federal laws. Customer has the responsibility to use safety glazing materials (e.g., tempered glass or laminated glass) in hazardous locations. FSG may from time to time offer or be asked to review, test, provide information or its opinion about products supplied by FSG, Customer’s methods, processes, designs and materials to be used with such products, or the suitability of such products in a proposed application but no FSG shall have any responsibility, liability or obligation with respect thereto or to supplement the same. Customer will at all times be responsible for determining the suitability of such information, review and test results, opinions, processes, products and services for use in Customer’s own processing and applications and for identifying and performing to Customer’s satisfaction all quality control tests, analyses, forecasts, and other tests and examinations necessary to assure that Customer’s products and services will be safe, acceptable and suitable for use under end-use conditions.
15. SHIPPING SCHEDULES; FORCE MAJEURE. All quoted shipping schedules are approximate and will depend upon prompt receipt by FSG from Customer and subsequent approval by FSG of all credit information. FSG may make delivery in lots or installments, unless otherwise expressly agreed, and all such lots or installments may be the subject of separate invoices which are to be paid when due under each invoice and without regard to subsequent deliveries. No FSG will be liable for any penalty for failure to meet shipping schedules unless the FSG has specifically agreed to such penalty in a writing signed by an officer of the FSG. FSGs will not be liable for any damage caused as a result of any delay in delivery or failure to deliver due to any cause beyond the FSG's reasonable control, including, without limitation, Act of God; any act of Customer; embargo or other governmental act, regulation or request; fire; accident; strike; slowdown; war; riot; flood; delay in transportation; or inability to obtain necessary labor, materials or manufacturing facilities at customary prices (“Force Majeure Events”). In the event of any Force Majeure Event, FSG may extend the date of delivery for a period equal to the time lost by reason of the Force Majeure Event or exercise the right referred to in Section 2. Customer's acceptance of the products when delivered will constitute a waiver of all claims for damages caused by any such delay or Force Majeure Event. Delay in delivery of any lot or installment or exercise of the right referred to in Section 2 will not relieve Customer of Customer's obligation to accept remaining deliveries. Products shipped to destinations within the USA may be packaged on steel racks or bungie racks of FSGs. All such racks are and will remain the property of FSGs. Customer will use reasonable care in unloading, loading and using the racks. The racks are to be used by Customer solely in connection with and to facilitate the delivery of the FSG products and for no other uses, including, without limitation, inventory storage and other storage or shipment of Customer’s or third parties’ products. Customer will not alter, sell or subject to an encumbrance any such rack. Customer is responsible to make racks provided to Customer available to FSG for recovery and for any loss or damage to the racks. FSG will be entitled to charge Customer for the replacement value of any rack not made available for recovery by FSG, lost or damaged. Upon a request of a FSG, Customer will permit persons designated by the FSG access to Customer’s facilities during normal business hours to enable such persons to determine the number and condition of racks in Customer’s possession and to recover possession of the racks for the benefit of FSGs. If recovery of possession of racks is sought by a FSG, Customer will at its cost cooperate with FSGs and their designees in all respects.
16. Governing Law. This agreement, and any Order, shall be governed by, and construed according to, the laws of China.
17. Entire Agreement. FSG’s QUOTATION, these TERMS OF SALE, FSG’s Order Confirmation, Pro Forma, FSG’s Limited Warranty (if applicable, and as issued by FSG), and any supplemental documents annexed hereto by FSG, contains the complete and entire agreement between the parties as to the subject matter hereof, and replaces and supersedes any prior or contemporaneous communications, representations, or agreements, whether oral or written, with respect to such subject matter.