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Terms & Conditions
- GENERAL. This Order is expressly
conditioned upon Seller's acceptance of the terms
and conditions set forth herein, together with
the terms set forth in documents attached to this
Order or incorporated by reference on the face of
this Order. The Order constitutes the entire agreement
between FRALOCK and Seller and supersedes all
other agreements and undertakings, whether written
or oral, between the Parties with respect to the
subject matter of this Order except for Non-Exclusive
Trademark Licenses which may exist between the Parties.
The Order shall not be modified by or interpreted
by reference to any course of dealing or usage of
trade and shall not be modified by any course of
performance. No modification of this Order shall
be effective unless in writing signed by the party
to be charged with the modification. No modification
shall bind FRALOCK unless signed by an authorized
FRALOCK Purchasing Representative. FRALOCK hereby
explicitly rejects the inclusion of any different
or additional terms proposed by Seller and if such
different or additional terms are so included in
an order acknowledgement, Seller agrees that a binding
contract of sale will result including only the terms
stated herein, unless FRALOCK has agreed by a written
Order Modification to accept such different or additional
terms.
The order of precedence of all terms and conditions in the Order are those designated: (1) on the face side of this Order, (2) in the body of a request for quotation or item specification, and (3) those stated in these Terms and Conditions.
Seller's acceptance of this Order must be by commencement of performance or by seasonable written acknowledgment of this Order, but where Seller's acceptance is by commencement of performance, FRALOCK reserves the right to treat its offer as having lapsed before acceptance unless FRALOCK is notified of Seller's acceptance within a reasonable time.
- VERBAL ORDERS are accepted under
the terms herein only. Any discrepancies between
FRALOCK's understanding of the verbal order (which
is expressed in this Order) and the Seller issued
order acknowledgement are the responsibility
of the Seller.
- ERRORS/CHANGES. Any clerical
errors appearing in the typed portion of an FRALOCK
Order may be corrected at any time by FRALOCK.
- QUANTITIES. The quantities specified
for delivery on this Order are the only quantities
required by FRALOCK. Therefore, if Seller delivers
quantities in excess of those specified in this
Order, FRALOCK shall not be required to make any
payment for the excess goods and, at FRALOCK's election,
may keep or return the excess goods at Seller's
risk and expense.
- CONFORMANCE OF GOODS. Seller
warrants that all goods furnished hereunder will
conform to the requirements of this Order (including
all descriptions, specifications and drawings
made a part of this Order), will be merchantable,
fit for their intended purposes, free from all defects
in materials and workmanship and free from defects
in design. All warranties, including special
warranties specified elsewhere herein or normally
offered to buyers of goods of this kind, shall inure
to FRALOCK, its employees, successors, assigns, customers
and users of its products. FRALOCK's approval of
designs or specifications furnished by Seller shall
not relieve Seller of its obligations under this
warranty. Any tender of goods which is nonconforming
as to the quality or quantity or the delivery schedule
shall constitute a breach of this Order and FRALOCK
shall have the absolute right to reject such goods,
in whole or in part, and notify Seller thereof. In
the event of such a tender, FRALOCK shall be entitled
to all remedies as provided by law, and in addition
thereto shall have the right to do any or all
of the following: (1) to hold such nonconforming
goods for a reasonable period at Seller's risk and
expense pending a determination to accept or reject
any or all thereof; (2) to return such nonconforming
goods to Seller at FRALOCK's election and at Seller's
risk and expense for replacement or correction; (3)
to accept such nonconforming goods subject to an
equitable price reduction; (4) to replace or correct
such nonconforming goods and charge to Seller the
cost occasioned to FRALOCK thereby; (5) to recover
by offset or otherwise any and all expenses, costs,
price reductions, and damages paid, incurred, or
suffered by FRALOCK as a result of such holding,
return, replacement, correction, reductions, or rejections
of nonconforming goods; or (6) to terminate this
Contract as provided herein.
- NOTIFICATION OF NONCONFORMING PRODUCTS. The
Seller shall immediately notify Fralock when
Seller becomes aware that nonconforming product has
been delivered to Fralock against this Order. Fralock’s
remedies in relation to nonconforming product
are as outlined in these terms and conditions in
item 5 above.
- RIGHT OF ACCESS. Seller shall
grant right of access to Fralock, Fralock’s
customer(s), and regulatory authorities to
all facilities involved in this order and to
all applicable records related to this order
upon written request from Fralock.
- NOTIFICATION OF PRODUCT CHANGES. The
Seller is required to notify Fralock of changes
in product and/or processes related to goods to
be supplied on this Order and, where required, shall
obtain Fralock’s
approval prior to shipment of product.
- SUBCONTRACTING. Seller
will not subcontract without FRALOCK's prior
written consent for the design, development or procurement
of the whole or any substantial portion of any
goods ordered hereunder. This limitation shall not
apply to Seller's purchases of standard commercial
supplies or raw material.
- PACKING All items are to be packed
in suitable containers for protection in shipment
and storage. Each container of a multiple container
shipment shall be identified (a) to show the
number of the container and the total number of containers
in the shipment, and (b) the number of the container
in which the packing sheet has been enclosed.
All shipments by Seller must include packing sheets
containing the FRALOCK Order number, quantity, part
number/size, and description of the items shipped.
Materials for different contracts shall be listed
on separate packing sheets.
- INVOICES shall be submitted by
the Seller to the FRALOCK Accounts Payable Department
at the address set forth on the face of this
Order. The prices set forth in this order includes
all taxes, duties, fees, packing, shipping and loading
charges, levies and similar charges. All sales and
use taxes must be separately itemized. The FRALOCK
Purchase Order Number and Item Number (if applicable)
must appear on all shipping documents, invoices,
and packing sheets. Determination of payment due
date, whether under net or discount terms, will be
based on the latest of (1) the date goods are received
or services are completed; (2) the date goods are
scheduled to be received or services are scheduled
for completion under this Order; or (3) the date
an accurate invoice and packing sheet (including
required product certifications) have been received.
Unless early delivery of goods or services is expressly
authorized by the FRALOCK Purchasing Representative,
payment for goods or services received in advance
of the contractual commitment date shall be made
as set forth above. Payment will be deemed to have
been made when deposited in the mail.
- TIME is of the essence of this
Order. Delivery dates are firm
commitments to deliver goods on the specified
date(s) unless specifically modified in writing.
In the event of delivery before the agreed date,
FRALOCK may refuse the goods, store goods at
Seller's expense or return goods to Seller at
Seller's expense.
- FLOW-DOWN OF TERMS AND CONDITIONS . The
Seller is required to flow down to sub-tier suppliers
the applicable requirements in the purchasing
documents, including key characteristics where required.
- PLACE OF DELIVERY. Unless specifically
stated otherwise, all deliveries shall be F.O.B.
FRALOCK at the address shown on the face of this
Order.
- INDEMNIFICATION. FRALOCK shall
not be liable for any incidental or consequential
damages or losses incurred by Seller. By accepting
this Order, Seller assumes all liability for
any damages of any kind which may result from use
by FRALOCK's employees, agents, or any other person(s)
including third parties unknown to FRALOCK or
Seller, including damages due to failure of the goods.
Seller agrees to indemnify, defend and hold FRALOCK
harmless from any and all such damages or losses,
including, without limitation, reasonable attorneys'
fees incurred by FRALOCK in defending against the
same, excepting such loss, cost or damage occasioned
by fault or negligence of FRALOCK.
- TERMINATION . FRALOCK
may terminate the whole or any part of this Order
in any of the following circumstances:
- If Seller fails to deliver the goods or to perform the services required by this Order within the time specified herein, or any extension thereof granted by FRALOCK in writing; or
- If Seller fails to perform any of the other provisions of this Order or so fails to make progress as to endanger performance of this Contract in accordance with its terms, and in either of these two (2) circumstances does not cure such failure within a period of ten (10) days after receipt of notice from FRALOCK specifying such failure; or
- In the event of suspension of Seller's business,
insolvency, institution of bankruptcy, liquidation
proceedings by or against Seller, appointment
of a trustee or receiver for Seller's property
or business, or any assignment, reorganization
or arrangement by Seller for the benefit of creditors
- NOTICES. Any notice submitted
by Seller, unless otherwise specified within
this Contract, shall be in writing and directed to
the FRALOCK Purchasing Representative indicated on
the face of the Order.
- DISPUTES Pending
the final resolution of any dispute involving
this Order, Seller agrees to proceed with performance
of this Order, including the delivery of goods,
in accordance with FRALOCK's instructions. Seller
shall submit to FRALOCK's buyer a written demand
for FRALOCK's final decision regarding the disposition
of any dispute between the parties relating to this
Order, unless FRALOCK, on its own initiative, has
already rendered such a final decision. Any FRALOCK
final decision shall be expressly identified as such,
shall be in writing, and shall be signed by FRALOCK's
authorized Purchasing Representative, except that
FRALOCK's failure to render a final decision within
ninety (90) days after receipt of Seller's demand
shall be deemed a final decision adverse to Seller's
contentions. FRALOCK's final decision shall be conclusive
and binding regarding the dispute unless Seller commences
an action to contest such decision within ninety
(90) days following the date of the final decision
or one (1) year following the accrual of the
cause of action, whichever is later. FRALOCK and
Seller shall bear their own costs of processing the
dispute.
- WAIVER AND SEVERABILITY Any
action or inaction by FRALOCK or the failure
of FRALOCK, on any occasion, to enforce any right
or provision of this Order shall not be construed
to be a waiver by FRALOCK of its rights hereunder,
and shall not prevent FRALOCK from enforcing such
provision or right on any future occasion. A determination
that any portion of this Order is unenforceable or
invalid shall not affect the enforceability or validity
of any of the remaining portions of this Order.
- RIGHTS AND REMEDIES The
rights and remedies of FRALOCK herein are cumulative,
and are in addition to any other rights or remedies
that FRALOCK may have at law or in equity.
- GOVERNING LAW. This Order shall
be governed by the laws of the State of California,
except that its conflict of law rules shall not
apply.
- SPECIAL TERMS AND CONDITIONS. The following terms shall apply to the extent indicated on the face of this order:
QUALIFIED PRODUCTS. In addition to the warranties of Clause 5, Seller warrants that the goods conform in all respects with “Approved Source” and “Qualified/Certified Process” requirements of the applicable specifications. PRODUCT CERTIFICATIONS. TEST REPORTS. ADDITIONAL REQUIREMENTS LISTED ON THE FACE OF THE ORDER. QUALITY SYSTEM. SOURCE INSPECTION. CUSTOMER/GOVERNMENT SOURCE INSPECTION BUY AMERICAN NON-DISCRIMINATION MINORITY-OWNED BUSINESS SMALL BUSINESS GOVERNMENT CONTRACT TERMINATIONS To the extent required by law, including specifically, but not exclusively, terminations for convenience and terminations for default under the terms of a government contract or purchase order issued to Fralock or a Fralock customer
