FOUNTAINHEAD ALLOYS PURCHASE ORDER TERMS AND CONDITIONS
All orders placed by FountainHead Alloys are governed by the following terms and conditions:
- ACCEPTANCE AND GOVERNING PROVISIONS. As used in this Purchase Order, the term “Buyer“ means FountainHead Alloys and any affiliated companies or customers of Buyer that are authorized to purchase under this order (“Order”). This Order is not an acceptance of any offer to sell but is an offer by Buyer to purchase. Acceptance of this Order and assent to these terms and conditions shall be deemed given by the Supplier to whom it is addressed (“Seller”) unless Seller gives specific written notice to the contrary to the Buyer prior to any performance of the Order, and Buyer agrees to modification of these terms in writing. Upon acceptance, this Order, together with quantities, prices, and delivery terms specified in releases pursuant to this Order, and Buyer, and its customers operating requirements, shall constitute the entire agreement between the parties (except for any additional warranties given by Seller), superseding any and all previous communications and negotiations. Buyer objects to and rejects any and all such different or additional terms proposed by Seller, regardless of the format, although the parties may use their form documents for ease of administration. The agreement or sale resulting from the acceptance of this Order shall be construed and interpreted in accordance with the internal laws of the State of Illinois without regard to its conflict of laws rules. The Convention on the International Sale of Goods is excluded. The parties may implement this Order through electronic means, and all such transactions shall be deemed to be writings completed pursuant to this Order.
- PRICE. The price payable to Seller for completing this purchase order is as described on the purchase order. No additional charges of any kind, including, without limitation, charges for boxing, packing, freight, or other charges or expense will be allowed unless specifically agreed to in writing in advance by Buyer
- DELIVERY. Seller shall deliver the goods and services, in the quantities, within the agreed time, in accordance with the specifications which have been provided to Seller, and at the prices specified in the Order. Stated time limits and quantity commitments are of the essence of this Order. Failure of Seller to comply with any such requirements shall entitle Buyer, in addition to any other rights or remedies, to cancel this Order and be relieved of all liability for any undelivered portion. Buyer shall be responsible only for quantities specified on releases pursuant to this Order, or otherwise specifically agreed to, in writing, by Buyer.
- INSPECTION. All goods purchased here under shall be subject to inspection and testing by Buyer or Buyer’s customer at any reasonable time and from time to time before, during or after manufacture or delivery. Notwithstanding any payment that may be made, no goods are to be deemed accepted until Buyer or Buyer’s customer has had a reasonable opportunity to inspect them.
- WARRANTIES. In addition to its standard warranty and/or service guaranty, Seller warrants that all goods supplied hereunder: (a) are free and clear of all liens and encumbrances, that good and merchantable title is transferred to Buyer; and that all services rendered are not rendered in violation of any duty owed to a third party by Seller; (b) are free from any defects in design, material or workmanship and are of good and merchantable quality; and that all services conform to specifications and are completed in a timely, competent and workmanlike manner; (c) conform to Buyer’s specifications, and the specifications and instructions of Buyer’s customers that have been provided to Seller and with any sample approved by Buyer; and are fit for the known purposes for which purchased; and (d) that the sale or use of goods or provision of services furnished hereunder in the manner intended will not infringe or contribute to infringement of any patent, copyright, or trademark in the United States, (e) comply and have been produced, processed, delivered and sold in conformity with all applicable Federal, state or other laws, administrative regulations rules and executive orders, industry codes and standards, including, without limitation, the Fair Labor Standards Act , government contracting regulations and flow down provisions and laws and regulations governing hazardous materials. The foregoing warranties shall survive inspection, delivery and payment, and shall run in favor of Buyer and its customers. If any such goods or services are be found to be unsatisfactory for any reason, Buyer may, at its option, retain such goods at an adjusted price or return them to Seller for repair, replacement or refund as Buyer shall direct; or may require re-performance or refund with respect to services. Buyer shall be reimbursed by Seller for all of its expenses in connection with the handling and transporting of any such unsatisfactory goods and additional expenses incurred by Buyer as a result of nonconformance of goods or services, including rework, de-installation, disposal, replacement or recall and Seller shall assume all risk of loss or damage in transit to goods returned by Buyer.
- INDEMNITY & INSURANCE AND LIMITATION OF LIABILITY Seller shall defend and indemnify Buyer, its successors and assigns and its customers (whether direct or indirect) against any and all losses, damages and expenses (including costs of any cure or remedy required by Buyer’s customers for non-performance, attorneys’ fees and other costs of defending any action), which they, or any of them, may sustain or incur as a result of any claim by Buyer or its customers of violation of any Federal, state or local, law, rule, regulation or executive order, negligence, breach of warranty or strict liability in tort in connection with the production, sale or use of the goods or provision of services furnished hereunder; in any negotiation or action to enforce Buyer’s rights under this Agreement or incurred by Buyer in any litigation, negotiations, transactions with its customer or third parties in which Buyer becomes involved as a result of Seller’s actions or failures to act. Seller shall, at Buyer’s request, defend all claims involving allegations against both Seller and Buyer at Seller’s expense, and Buyer shall cooperate in such defense. PROVIDED HOWEVER, EXCEPT FOR THE OBLIGATION TO INDEMNIFY AGAINST THIRD PARTY CLAIMS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOST TIME, LOST PROFITS, OR FOR SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OR BASIS OF THE CLAIM. Seller shall obtain and maintain sufficient Commercial General Liability coverage, including Products Liability and Contractual Liability Insurance, approved by Buyer, to protect Seller and Buyer from reasonably anticipated claims, but with a limit of liability not less than $2 million per occurrence.
- CONFIDENTIALITY. Seller agrees (a) to maintain in confidence all confidential information of Buyer (b) not to disclose any such information to anyone except Seller’s employees on a need-to-know basis (and who have been informed of and acknowledge their obligation to be bound by the terms of this Agreement) and third parties to whom such disclosure is specifically authorized in writing by Buyer, and (c) not to use Buyer’s confidential information for any purpose other than that for which it is disclosed. All confidential information shall remain the sole property of Buyer and Seller shall have no right, title or interest in or to the confidential information. Confidential information of Buyer includes, without limitation, information of Buyer and information of third parties, including Buyer’s customers, in Buyer’s possession relating to (a) matters of a technical nature such as trade secret processes or devices, know-how, data, formulas, inventions (whether or not patentable or copyrighted), specifications and characteristics of products or services planned or being developed, and research subjects, methods and results, (b) matters of a business nature such as information about costs, profits, pricing, policies, markets, sales, suppliers, customers, product plans, and marketing concepts, plans or strategies, (c) matters of a human resources nature such as employment policies and practices, personnel, compensation and employee benefits, (d) other information of a similar nature not generally disclosed by Buyer to the public.
- NON-ASSIGNABILITY. If Seller assigns or subcontracts any portion of this Agreement, Seller remains responsible for performance of the agreement by its assignee.
- TAXES. Taxes are included in prices, unless otherwise agreed to by Buyer.
- CHANGES. Buyer may make changes in specifications, quantities, delivery schedules, or methods of shipment or packaging on any item good or service at any time. If such changes result in an increase or decrease in cost or time of performance, an equitable adjustment of price and delivery schedules may be agreed to in advance of the implementation of such change or Buyer may, at its option, terminate this contract if agreement on an equitable adjustment cannot be reached.
- CANCELLATION BY BUYER. Buyer shall have the right to cancel this Order without cause, and Buyer’s liability for cancellation of this Order without cause shall be limited to Seller’s actual, documented cost for work and materials applicable solely to this Order which were expended prior to receipt of notice of cancellation by Seller, and in no event shall exceed the purchase price of cancelled goods or services.
- GOVERNMENT AND END-USER CONTRACT TERMS AND CONDITIONS. If the items goods or services to be furnished under this Order are to be used in furtherance of any U.S. government prime contract or subcontract, then all the applicable provisions required to be included in this Order by the applicable government contract or by federal law, executive Order or regulation shall be deemed incorporated herein, including all applicable Federal Acquisition Regulations and Defense Federal Acquisition Regulations. Seller agrees to comply with all applicable local, state and federal laws and executive orders and regulations issued pursuant thereto, including without limitation, identification of country of origin, customs rules and regulations, restrictions on export of information, restrictions on dealing with restricted persons and citizens of restricted countries, compliance with equal opportunity requirements and implementation of a supplier diversity plan. All end-user contract terms relating to quality, quantity and delivery are hereby incorporated and made a part of any affected purchase order. Buyer will notify Seller of all such terms and conditions. Seller shall not be held responsible for conforming to end-user terms and conditions unless it receives a copy of such terms and conditions.
Terms and Conditions of Quotations and Sales
- Quotations are based on one release of sizes. Multiple shipments at your request may result in additional delivery charges as listed below (#14 and #15). These charges are cumulative and other costs may be added.
- Quoted prices may not include surcharges, fees, and/or taxes which are payable to Solar Seal as set forth in its Terms and Conditions of Quotations and Sales or which are required by law.
- Charges for all products are based on a 5 (five) square foot minimum and a $300 minimum order charge for fabricated products and $300 for flat glass orders unless otherwise noted ($150 for orders produced in SSVA). Square footage is calculated and invoiced by rounding up to the next even inch.
- Quotations are valid for 90 (ninety) days from the date of quote. If additional time is required, a letter of intent must be received in writing and accepted by Solar Seal for an additional 90 (ninety) days of price protection. Prices are based on sizes, quantities, and materials as listed on the quotation. Any deviations are subject to a re-quote.
- All insulated units are manufactured with a primary seal of polyisobutylene and a silicone or hot melt (CT and VA only) secondary seal at our discretion. Any order requiring silicone must be stated upon the customer’s order. All requests for quotations and/or orders for two, three, or four (or more) sided structural glazing must be identified as such and are accepted only with a review of shop drawings. The customer is responsible for compliance with plans, specifications, building codes, and other contract documents.
- Solar Seal may at its sole discretion grant credit terms to buyer(s) which are subject to an ongoing assessment of buyer(s) credit worthiness and/or financial standing. Solar Seal may at any time and for any reason revoke, withdraw, and/or modify credit terms with its buyer(s). In the event of non payment, the buyer(s) shall be responsible for Solar Seal’s costs of collection including but not limited to reasonable attorney’s fees.
- The contract price requires full payment to be made within 30 (thirty) days of the invoice date with no retainage allowed.
- Buyer’s orders, once accepted, may not be modified or cancelled without Solar Seal’s consent upon which a reasonable change or cancellation fee will apply. Any cancellations/changes must also be made in writing.
- Solar Seal reserves the right to charge buyer(s) for any surcharges, fees, assessments, and/or costs charged to Solar Seal by its vendors.
- Unless otherwise agreed upon in writing between both the buyer(s) and Solar Seal, all products, including those which are required to meet an exact specification, shall be subject to standard industry tolerances, variations, and inspections.
- All glass furnished by Solar Seal conforms to standard A.S.T.M. specifications: C1048-97b, C1036-01, C1172-01, C1376-03 and/or E774-97.
- Solar Seal warrants its products to the immediate purchaser only and is based on the date of manufacture. Glass breakage and/or any damages resulting from any type of breakage including but not limited to spontaneous breakage is excluded from any type of warranty. Any and all verbal representations intended to modify any of Solar Seal’s existing warranties are invalid. Copies of Solar Seal’s written warranty are available by request.
- Spandrel glass is intended to be installed against a solid dark background. It is not intended to be viewed from both sides. White and other light colors are subject to read through. Colors will vary from batch to batch and may vary from piece to piece due to variations in the base glass. Full size mock-ups should be viewed by the Architect and Building Owner for approval prior to ordering final materials.
- All Shipments are based on loose lite delivery on Solar Seal rack trucks to your shop unless otherwise noted. Boxing, if included, is based on standard 2,000 pound cases. Additional boxes or boxes less than 2000 pounds will be invoiced at a minimum of $150.00/box. Solid cover boxes are available at $200.00/box. Boom truck deliveries are available for deliveries of 10,000 pounds or more at no-charge. For deliveries less than 10,000 pounds, a boom charge of $150.00 will be added to the invoice exclusive of a jobsite charge. Jobsite deliveries are available on shipments of 10,000 pounds or more at no-charge. For jobsite deliveries of 10,000 pounds or less, a charge of $100.00 will be added to the invoice, exclusive of a boom charge.
- Orders which are unable to be accepted within 30 (thirty) days of the original ship date are subject to an additional charge of $150.00 per crate per month and are payable per Solar Seal’s standard payment terms and conditions. Solar Seal will not be held responsible for any damage resulting from any materials which are stored at your request for a period of more than 30 (thirty) days.
- Buyer(s) are required to inspect goods upon receipt and to immediately notify Solar Seal of any and all product issues related to non-conformance. Solar Seal will not be held responsible for damages to products which may have occurred after receipt by the customer.
- Products supplied by Solar Seal may not be returned to Solar Seal without Solar Seal’s written consent.
- Solar Seal will not be held responsible for any back charges or other types of penalties/fees for any reason including, but not limited to: late or incomplete deliveries, damages of any kind, incorrect product ordered or supplied, non-availability of product, any other type of delays or delivery issues not previously mentioned regardless of the cause, or any other issue resulting in lost time and/or lost materials.
- Solar Seal has no responsibility to any buyer or third party for faulty, incomplete, incorrect, or misuse of any of its products as they relate to system design(s) and/or application types.
- Buyer(s) shall indemnify and hold Solar Seal, its employees, agents, assigns, and heirs harmless from and against any damages, loss, costs, or expense(s) resulting from any charge or claim including but not limited to property damage or personal injury arising out of any buyer’s performance under this order and/or buyer’s negligence and/or willful misconduct.
- In accordance with the current CPSC requirements for heat treated glass products, please refer to the Safety Glazing Certification Council website (www.sgcc.org) and search under “Solar Seal Company” and “Solar Seal Connecticut ” for the latest record of compliance testing.
- This agreement and all other agreements between buyer(s) and Solar Seal shall be governed and construed according to the laws of the States of Massachusetts and Connecticut.
- Solar Seal’s terms and conditions apply to any and all quotations and/or orders
General Terms and Conditions of Quotations and Sale
All goods and services are supplied on the terms and conditions set out herein and no addition or variation to these terms and conditions will have any effect unless expressly agreed in writing by the Seller.
a) Unless previously withdrawn, a quotation is valid for 30 days or such other period as stated in it. A quotation is not to be construed as an obligation to sell but merely an invitation to treat and no contractual relationship shall arise from it until the Buyer’s order has been accepted by the Seller.
b) No Seller shall be bound by any condition attaching to the Buyer’s order or acceptance of a Quotation and, unless such conditions are expressly accepted by the relevant Seller in writing, the Buyer acknowledges that such conditions are expressly negated.
c) Cancellation of an order can be made only with the Seller’s consent and upon terms that will compensate the Seller against loss.
d) Orders are subject to approval of the Seller’s Credit Department and the Seller may at any time alter or suspend credit, refuse shipment or cancel unfilled orders, when in the Seller’s opinion the financial conditions of the Customer, or the status of the Customer’s account, warrant it.
e) Change orders requested by the Customer shall not be effective unless accepted in writing by the Seller. The Customer shall be liable for any costs, expenses, and liabilities incurred by the Seller in connection with any such change order.
a) Quoted prices do not include GST.
b) Quoted prices do not include cost of delivery or fuel surcharge.
c) Notwithstanding Clause 1(a), the Seller:
i) shall be entitled to vary the quoted price for the goods and services at any time prior to delivery if the cost to the Seller of performing the contract is increased by reason of delivery of the goods and services outside normal working hours at the request of the Customer or to an address other than that originally specified by the Customer.
ii) shall be entitled to vary the quoted price for imported goods at any time prior to delivery if the currency used to quote has shifted by more than 2.5% between the date quoted and the date of invoice.
iii) reserves the right to apply prices ruling at the time of delivery.
d) Quoted prices for hire of any fitting tools and equipment in conjunction with goods supply are subject to change if there is any change in quantity or type of the goods purchased.
3. Terms of Payment
a) Where the Customer has a credit account with the Seller, the invoice amount for the goods and services must be paid in full within thirty (30) days of the end of the month during which the goods and services were invoiced. In all other cases the quoted price for the goods and services must be paid in full on or before delivery.
b) The Customer is not entitled to withhold payment or make any deduction from the quoted price of the goods and services in respect of any set off or counterclaim.
c) If the Customer fails to pay for any installment of the goods, the Seller may in its absolute discretion, but without prejudice to any other remedy it may have, postpone the fulfillment of its obligations under this order and under any other order with this Customer until such payment is made and charge to the Customer any extra expense incurred thereby.
4. Property in the Goods
a) Notwithstanding delivery of the goods to the Customer, property in the goods will not pass to the Customer until the Customer has paid to the Seller all sums owing by the Customer to the Seller under the order. b) Until such payment is made, the Customer holds the goods as bailee for the Seller and will store the goods separately from other goods on the premises of the Customer or in some other way as to render them capable of separate identification.
c) Where payment is not made on or before the due date, the Customer will, upon demand by the Seller, deliver up the goods to the Seller, failing which the Seller is irrevocably authorised to enter upon the place where the goods are situated and remove them and the Customer will indemnify the Seller against any action claim or demand arising out of the exercise by the Seller of its powers under this sub-clause. d) Where the Order is for delivery of goods by installments, property will not pass in any installment until payment has been made to the Seller for the whole Order.
Risk will pass to the Customer on delivery of the goods notwithstanding that ownership remains with the Seller until payment is made in full.
a) Unless otherwise agreed in writing, the time of delivery is calculated from the date of the Order. Although every effort is made by the Seller to keep the delivery date promised, the Seller assumes no liability for any loss or damages occasioned by delays in delivery. Offers for delivery ex stock are subject to confirmation on receipt of order.
b) Unless otherwise agreed in writing, the Seller shall be entitled to make delivery by installments and to determine the route and manner of delivery of the goods.
c) The Seller shall be entitled to deliver the goods to the premises notified by the Customer even though those premises may be unattended by the Customer at the time of delivery.
d) The Seller’s delivery records shall be prima facie proof of delivery of the goods to the Customer.
e) If the Seller is prevented (directly or indirectly) from delivering the goods or any of them by reason of any act of God or strikes, lockouts, trade disputes, fire, breakdown, interruption of transport, governmental action or any other cause whatsoever (whether or not of the like nature to those specified herein) outside its control the Seller will be under no liability whatsoever to the Customer and will be entitled at its option either to terminate the Order or to extend the time of its performance.
7. Cancellation or Suspension of Orders
Except where the Customer has a statutory right of termination, orders accepted by the Seller may not be cancelled either wholly or in part without the consent in writing of the Seller.
a) The Seller makes no warranties, either express or otherwise, under this Agreement except to the extent that the goods supplied are covered by the manufacturer’s warranty. The Seller will pass on to the Customer the benefit of the manufacturer’s warranty. The warranty will not extend to cover any goods that were delivered by the Seller to the Customer outside of the previous 12 months and does not cover damages or defects due to outside action, lack of care, overload, unsuitable lubricant, natural wear, incorrect choice of product, faulty fitting or other circumstances beyond the Seller’s control.
b) Upon discovery of any defect in the goods supplied by the Seller, the Customer shall immediately and without delay notify the Seller in writing. The Customer shall not carry out any remedial work without first obtaining the written consent of the Seller to do so.
c) To the extent permitted by statute, the liability, if any, shall be at the Seller’s option and limited to:
i) the replacement of the goods or resupply of the goods by the Seller; or
ii) the repair of the goods
d) Any service or advice which may be offered by the Seller, its servants or agents to the Customer or its agents, is rendered in good faith and the Seller shall not be liable for any loss or damage arising therefrom.
e) For the avoidance of doubt, the Seller will be under no liability whatsoever to the Customer for any loss, injury or damage (including consequential loss, injury or damage) suffered or caused as a result of or arising out of any act or omission (whether negligent or otherwise) by the Seller, its servants or agents or any other person in any way related to or arising out of the Order by the Seller.
9. Miscellaneous (a) The Customer will, upon demand by the Seller, pay to the Seller the amount of any stamp duty or other tax (including sales tax and GST) payable on the supply of any goods and services by the Seller. 10. Intellectual Property
All copyright, design right and other intellectual property in any design, specification, process, method of working or other information relating to the Goods (other than that provided by the Customer to the Seller) shall vest for all time in the Seller. The Seller only grants to the Customer an irrevocable licence to use the Goods.
11. Paramountcy These General Terms and Conditions of Quotation and Sale shall constitute the entire agreement between the Seller and the Customer and no terms, conditions, obligations or other provisions of any nature not contained in these General Terms and Conditions of Quotation and Sale shall be of any effect. For the avoidance of doubt, these General Terms and Conditions of Quotation and Sale shall apply in all circumstances, including where the Customer validly accept this quotation or where the Customer and the Seller otherwise proceed with carrying out work under the Order, whether or not the Customer, at any time and by any means, purports to impose its own terms and conditions.
12. Governing Law of Contract
These General Terms and Conditions of Quotation and Sale are governed by, and are to be construed in accordance with, the laws of India and the parties submit