Terms and Conditions
Fletcher Coating Company, a subsidiary of Cal-Coat Corporation
Any and all services sold by Seller shall be subject to the terms and conditions set forth in this document and/or a Letter of Agreement. In the event a conflict between any of the terms and conditions contained in this document or a Letter of Agreement, the terms and conditions in these writings shall control.
Prices And Other Charges
Except as otherwise agreed to in writing by the Seller, all prices are Freight on Board (F.O.B.) Seller’s facility and may be subject to all federal, state, and local taxes. All prices quoted are subject to change within a specified period. Buyer is responsible for shipping. The Buyer or its Transportation Company shall supply any and all materials for protecting and securing coated shipments. The appropriate amount of materials to adequately protect and secure coated shipments, as required by current ASTM specifications, that is not provided by the Buyer at the time of shipment will be charged to Buyer. The required protection materials may include wood dunnage and wood pallets required for the protection of coated materials shipped, and may include storage fees.
Terms Of Payment
Buyer is required to complete a credit application to establish a credit account with Fletcher Coating Company. Buyer shall issue payment on all amounts within Thirty-days (30), to the Seller, from date of invoice without offset of any kind. If payment is not received by the date shown in the “Late Payment Charge", a late charge shall accrue at rate of one and one-half (1.5%) percent, calculated daily, of your total unpaid balance after the “Due By" date.
Buyers Responsibility And Indemnity
Buyer shall indemnify, defend and hold the Seller harmless from any claims, demands, costs, liabilities, including actual attorneys' fees, incurred relating in any way whatsoever to the use, and/or transportation of the coated product. Buyer shall pay all attorney fees and any costs incurred by Seller and including all fees incurred collecting any amounts under these Agreements, investigating, settling, or defending any claim, whether or not any court action has been filed. Buyer further agrees to pay reasonable attorney's fees and costs incurred by us to collect any money and/or any invoice not paid when due. Any payments received shall first be applied to all/any attorney’s fees and the cost of collection incurred investigating, settling, or defending any claim, whether or not any court action has been filed. Then it shall be applied next to the storage cost, next to interest and then next to the principle. The prevailing party shall be entitled to reasonable attorney’s fees and cost in any action or proceeding to enforce this Agreement.
Quantity And Shipment
Seller reserves the right to endorse all carriers and the mode of shipment of its coated products. The Seller shall use its best efforts to have the coated products for shipment within agreed upon time periods and the exact quantities ordered. The Seller shall have no liability for late shipments. All shipments of a coated product shall be subject to the Seller’s and/or currently approved ASTM packaging standards, specifications and practices. Buyer or the Transportation Company shall supply wood dunnage, wood pallets, nylon straps, polypropylene tarp covers for job-site storage or other materials for protection of shipments. All loads leaving the Fletcher Coating Company plant shall be secured using only nylon straps or rope. No chains or metal wire will be used on any coated products. Partial shipments by Fletcher Coating Company shall be entitled. Partial shipments of the coated products covered by this agreement; as such coated products become available for shipment and may invoice the Buyer separately for each partial shipment. Partial shipment of coated products shall not relieve the Buyer from its obligations hereunder to accept shipments of the remainder of the order. Buyer shall maintain and comply with all standards established by Seller/ASTM/DOT practices and procedures for fabrication, storage, repair, handling, transportation and receipt and delivery of materials to ensure highest level of excellence and quality in materials produced and transported to the job site.
Title And Risk Of Loss
Title shall pass and buyer shall assume all risk of loss upon release of the coated products to a common carrier, the Buyer’s agent, or its representative, or its employee, whichever first occurs. The Seller shall not be liable for delays caused by common carriers, or any coated products lost or damaged in transits.
Time Of Performance
The Seller shall be released from performing any of its obligations, to the Buyer, by events beyond its reasonable control. These include, but are not limited to, acts of God, explosions, sabotage, strikes, lockouts, labor disputes or shortages, work stoppages or delays, transportation embargoes or delays, or any failure of Seller’s suppliers to make timely shipments. Seller’s obligation shall resume when the events operating to release Seller’s performance cease. The Seller shall use its best efforts to have the coated products for shipment within agreed upon time periods. The Seller shall have no liability for late shipments.
Seller’s Lien And Offset Rights
Seller reserves the right to asset its lien rights under California Civil Code Section 3051, et seq., or otherwise, against any property of the Buyer. And the Seller may offset, in whole or in part, and without notice to the Buyer, any amounts due the Buyer against any amounts due the Seller under this Agreement.
Waiver Of Jury Trial
Buyer and Seller hereby waive the right to have any disputes relating in any way whatsoever to be the subject matters of the Agreement resolved, in whole or in part, by a trial by jury. And in addition the parties agree that any such disputes shall be resolved before a judge or a court of competent jurisdiction in Orange County, California. The Buyer hereby consents to the jurisdiction of such courts and service of process by Certified Mail addressed to the Buyer, at the address shown in Buyer’s Credit Application or Request for Quotation, or any document approved by Seller.
General Terms And Conditions
The terms and conditions govern your association with the Fletcher Coating Company a subsidiary of Cal-Coat Corporation. The terms and conditions set forth in this document and/or any Letter of Agreement constitute the entire agreement of the parties with respect to the subject matters hereof and supersede all prior, contemporaneous, and subsequent discussions and writings. No amendment of this document shall be valid unless in writing signed by the Seller’s President or Officer and the Buyer’s authorized agent or representative. Each party represents and warrants that he/she/it is duly authorized to execute any Agreements and thereby binds the parties to all the terms, provisions and conditions contained herein too. If the Buyer issues a purchase order or other document purporting to relate to the Agreement or the products, either as an original contract or as an amendment of the Agreement, such document issued by the Buyer, shall be considered to be for the Buyer’s internal use only. If any provisions contained herein shall not affect the enforceability of any other provision of the Agreement. The failure of a part to enforce any provision of this Agreement, shall not constitute a waiver of such provision or the right to enforce such provision, or a waiver if any prior or subsequent breach of the Agreement. This Agreement is deemed to been made in the County of Orange, State of California, and shall be construed in accordance with the laws of the State of California and the United States.
© 2000 Fletcher Coating Company. All Rights Reserved.