Fowler Supply Terms & Conditions of Sale
(Last updated 09/09/2024)
1. Scope of Applicability
1.1 These General Terms and Conditions of Sale (“GTCS”) apply to all sales of goods by Fowler Waterproofing Supply, Inc. (“Fowler”) notwithstanding any conflicting, contrary or additional terms and conditions in any purchase order or other communication from you. No such conflicting, contrary or additional terms and conditions shall be deemed accepted by Fowler unless and until expressly confirmed in writing.
1.2 Fowler reserves the right to change the GTCS at any time. Changes take effect thirty calendar days of the “Last updated” date on the https://www.fowlerwaterproofingsupply.com website.
2. Quotes, Purchase Orders, and Order Confirmations
2.1 All sales quotes made by Fowler are open for acceptance within thirty calendar days from the date of the quote issued date, unless otherwise specifically stated therein, and are subject to the availability of the goods offered.
2.2 All purchase orders issued by you shall specify as a minimum the type and quantity of goods requested, applicable unit prices, delivery place, and requested delivery dates. No purchase order shall be binding on Fowler unless and until confirmed by us in writing via email or other electronic format.
3. Prices and Terms of Payment
3.1 The prices for goods shall be those set forth in the Fowler order confirmation. All prices are exclusive of taxes, impositions and other charges, including, but not limited to, sales, use, excise, value added, and similar taxes or charges imposed by any government authority.
3.2 Per the payment terms stated within a quote, order confirmation and invoice, payment for goods shall be made as agreed without offset or deduction.
3.3 A credit application must be provided for the establishment or continuation of payment terms. Fowler may, at its sole discretion at any time, change agreed payment terms without notice by requiring payment cash in advance or cash on delivery, credit card payment, bank guarantee, letter of credit or otherwise.
3.4 Failure to pay any invoice within seven calendar days of the due date of payment, may suspend delivery of any open purchase order or any remaining balance thereof until payment is made or terminate delivery of any purchase order or any remaining balance thereof by providing written notice of termination to you within seven calendar days of the expiration of the grace period. Further, Fowler may charge you interest from the due date to the date of payment at the rate of 1 ½ % per month. This shall be in addition to, and not in limitation of, any other rights or remedies to which Fowler is or may be entitled at law or in equity.
3.5 Title to goods delivered shall remain vested in Fowler and shall not pass to you until the goods have been paid for in full. If you fail to pay any invoice within fourteen calendar days of the due date of payment, Fowler may retake the goods covered by the invoice. You must insure all goods delivered to their full replacement value until title to the goods has passed to you.
4. Terms of Delivery and Late Delivery
4.1 Fowler assumes the coverage of product damage up to the point of delivery on shipments sent directly out of the Fowler, Tucker, GA facility that are specifically arrange by Fowler. The risk of loss of or damage to goods shall pass to you once delivered to the agreed upon delivery location. Product picked up at the Tucker, GA location is not covered from damage once the goods leave the Fowler facility.
4.2 Risk of loss of or damage to goods drop shipped from manufactures and vendors are covered per the terms and conditions set forth by the manufacturer and vendor. Unless Fowler explicitly arranges both the pickup and deliver of goods, Fowler does not assume the responsibility of product replacement from damage, missing product, theft, or any other risk.
4.2 No guaranteed delivery date of goods shall be set forth in a Fowler order confirmation. Best efforts are made to delivered product by a requested date, but manufacturer delays, supply chain issues, weather conditions, etc. prohibit Fowler from promising deliver dates.
4.3 Fowler reserves the right to make deliveries in instalments.
5. Acceptance of goods
5.1 You must inspect goods delivered upon receipt. You are deemed to have accepted goods delivered unless written notice of rejection specifying the reasons for rejection is received by Fowler within five calendar days after delivery of the goods.
6. Warranty
6.1 Fowler warrants that upon delivery and per the manufacturer’s specific product warranty period from the date of delivery goods purchased hereunder will conform in all material respects to the applicable manufacturer’s specifications for such goods and will be free from material defects in workmanship, material and design under normal use. The warranty does not cover damage resulting from misuse, negligent handling, incorrect installation, improper storage, lack of reasonable maintenance and care, accident or abuse by anyone other than Fowler.
6.2 With respect to goods which do not conform to the warranty our liability is limited, at Fowler’s election, to (i) refund of the purchase price for such goods less a reasonable amount for usage, (ii) repair of such goods, or (iii) replacement of such goods; provided, however, that such goods must be returned to Fowler, along with acceptable evidence of purchase, within fifteen calendar days after you discovered the lack of conformity or ought to have discovered it.
6.3 Fowler makes no other warranty, express or implied, with respect to goods delivered hereunder, and the warranty constitutes Fowler’s sole obligation in respect of any lack of conformity of goods delivered hereunder (except title). In particular, Fowler makes no warranty with respect to the merchantability of goods delivered or their suitability or fitness for any particular purpose.
7. Intellectual Property Rights Infringement
7.1 If any goods delivered hereunder are held to infringe a third party’s patent, utility model, design, trademark, or other intellectual property right and you are enjoined from using same, Fowler will, at our option and expense, (i) procure for you the right to continue using the goods; (b) replace the goods with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function; (c) modify the goods to make them non-infringing; or (d) refund the purchase price of the goods less a reasonable amount for usage. The foregoing states Fowler’s sole liability for intellectual property rights infringement.
8. Limitation of Liability
8.1 Neither Fowler or you will be entitled to, and Fowler or you shall be liable for, indirect, special, incidental, consequential, or punitive damages of any nature, including, but not limited to, business interruption costs, loss of profit, removal and/or reinstallation costs, reprocurement costs, loss of data, injury to reputation or loss of customers. Your recovery from Fowler for any claim shall not exceed the purchase price for the goods giving rise to such claim irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise.
8.2 Fowler shall not be liable for any claims based on compliance with your designs, specifications or instructions or repair, modification or alteration of any goods by parties other than Fowler or use in combination with other goods.
9. Force Majeure
9.1 Either party shall be excused from any delay or failure in performance if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, strikes, lock-outs or other serious labor disputes, riots, earthquakes, floods, explosions or other acts of nature. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the parties’ respective obligations shall resume. In the event the interruption of the excused party’s obligations continues for a period in excess of thirty calendar days, either party shall have the right to terminate the applicable contract(s) of sale, without liability, upon thirty calendar days’ prior written notice to the other party.
10. Miscellaneous
10.1 No waiver of any provision of these GTCS shall constitute a waiver of any other provision(s) or of the same provision on another occasion. Failure of either party to enforce any provision of these GTCS shall not constitute a waiver of such provision or any other provision(s) of these GTCS.
10.2 Should any provision of these GTCS be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the parties and enforced as modified. All other terms and conditions of these GTCS shall remain in full force and effect and shall be construed in accordance with the modified provision.
10.3 These GTCS and all contracts of sale entered into between Fowler shall be governed by and construed in accordance with the laws of the State of Georgia without giving effect to any choice of law or conflict of law provisions. Any suits, actions or proceedings that may be instituted by any party shall be instituted exclusively before the competent courts of Georgia, however, without prejudice to our right to bring suits, actions or proceedings in any other court which would have jurisdiction if this provision had not been incorporated into these GTCS.