FOX Industries, Inc.
Terms and Conditions: December 23, 2013
General Statement
FOX Industries, Inc. a corporation of the State of New Jersey, United States of America (“Seller”), operates www.foxindustries.com to provide online access to information about Products and Services provided by Seller, to facilitate transactions for the purchase of Products and to provide information about Services furnished by Seller.
By ordering Products, a Buyer (sometimes referred to below as “you”) agrees to the Terms and Conditions set forth below, even though the Terms and Conditions are not set forth in Buyer’s Purchase Order or in Seller’s acceptance thereof.
In case of a conflict between the terms and conditions set forth in Buyer’s Purchase Order, the Terms and Conditions set forth below, as the same may be modified from time to time, shall prevail.
Purchase Orders placed on forms deviating from Seller’s Terms and Conditions may be accepted but acceptance shall automatically mean that the Terms and Conditions set forth below, as the same may be modified from time to time, shall prevail over Buyer’s terms and conditions.
No change, alteration, deletion or modification of any of the Terms and Conditions shall be effective without the written consent by an authorized Seller representative. Seller’s failure to object to any provisions contained in any document or other communication from Buyer shall not be deemed a waiver of any of the terms hereof.
Seller reserves the right to modify the Terms and Conditions at any time without giving you prior notice. However, purchase orders accepted by Seller prior to the publication on this Site of any such modification shall not be subject to the modification.
Specific Terms and Conditions
1. Buyer to provide an e-mail address
1.1 Each Purchase Order shall include a valid email address of the person who is to receive notices from Seller concerning the Purchase Order; and if there is a change to another person, Buyer shall give prompt notice to Seller.
1.2 Buyer agrees that Seller will not be responsible for any damage Buyer incurs or information it does not receive as a result of Buyer’s failure to provide a valid email address.
2. Seller’s Acceptance of Purchase Orders, etc.
2.1 A Purchase Order from Buyer is an offer to purchase. Seller may accept the order by processing or may, for any reason; decline to accept it in whole or in part.
2.2 If Seller declines to accept a Purchase Order, Seller will attempt to notify Buyer using the email address or other contact information provided with the Purchase Order.
3. Buyer’s actions Subsequent to Seller’s acceptance of a Purchase Order
3.1 A Purchase Order which has been accepted by Seller may not be cancelled or modified or assigned without Seller’s ‘s prior written agreement in a Change Order Acceptance; and, in such event, the Buyer will be liable to Seller for any additional costs and expenses reasonably incurred by Seller.
3.2 A Change Order Acceptance may include an increase in pricing.
4. Form of Payment and related matters
4.1 For United States customers: Method of payment for Products are check, money order, MasterCard, Visa, American Express, C.O.D., prepaid by wire transfer, cashier’s check in US funds, as well as open account credit to qualified institutions and businesses. Payment must be made in US funds. Sales tax is charge on shipments in New Jersey, unless you have tax exempt status or we have your resale certificate on file. If you have tax-exempt status, you must provide a valid tax exemption number evidencing your status at the time of purchase. Seller will not refund tax amounts collected in the event a valid number is not provided. If you provide a number that is not accepted for any reason and Seller is required to pay tax on your purchase, you will reimburse Seller for the amount of such tax. Fax your resale certificate and your customer number to 973-227-5377, Attn: Sales Tax.
4.2 For Canadian customers all of the above payment options except C.O.D.
4.3 For Other International customers: payment may be by MasterCard, Visa, American Express, prepaid by wire transfer, cashier’s check in US funds, as well as open account terms to qualified institutions and businesses. We will not accept personal checks or certified personal checks. Use of Letters of Credit must be approved in advance.
4.4 Upon placing an order Seller may verify Buyer’s method of payment, shipping address and/or tax exempt identification number, if any, before processing Buyer’s order.
5. Dishonored checks.
If a check of Buyer dishonored for any reason by the bank or other institution on which it is drawn, you agree to pay Seller $50.00 (US) as a service charge whether or not the check can be re-deposited. In addition, you agree to pay any other reasonable charges imposed by any check verification company or collection agency that Seller may use for collection.
6. Prices, taxes and duties, etc.; Title to the Products
6.1 Prices quoted are FOB the loading dock at Seller’s facility or another location agreed upon by Seller and Buyer, and, except as otherwise indicated, are exclusive of all city, state and federal taxes, payment of which taxes shall be the sole responsibility of Buyer. Whenever applicable, such tax or taxes will be added to the invoice as a separate charge to be paid by Buyer.
6.2 All orders of international origin are exported from the US in accordance with the Export Administration Regulations. Diversion contrary to US Law is prohibited.
6.3 All duties and taxes will be the responsibility of Buyer.
6.4 Title to the Products shall pass to Buyer when Buyer’s carrier takes the Products from the Seller’s loading dock at Seller’s facility or elsewhere.
7. Seller’s express warranties and disclaimers and limitations of liability; Buyer’s indemnification of Seller re Third-Party Claims
7.1 The Warranty
Seller warrants its products against defects in the normal use thereof which arise solely from faulty material or workmanship for a period of two (2) months after delivery thereof. Buyer acknowledges that except as set forth in the preceding sentence neither Seller nor any other person has made, and Buyer has not relied upon, any express or other warranty, or representation (including, without limitation, advertising materials, brochures or other descriptive literature) concerning any Products.
7.2 Disclaimer of other warranties.
SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY PRODUCT, OR WITH RESPECT TO THIS SITE, THE SERVICE OR THE CONTENT. SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.
7.3 Buyer’s Remedies
With respect to breach of the warranty in 7.1 above Buyer’s exclusive remedies shall be limited, at Seller’s election, to (1) refund of Buyer’s purchase price for such Products (without interest), or (2) repair by Seller or by persons designated by Seller of any Products found to be defective in violation of the foregoing warranty, or (3) replacement of any such Product, repair or replacement shall be made or affected within a reasonable time and at no cost to Buyer.
7.4 Limitation of Seller’s Liability
Except for Buyer’s sole and exclusive remedies set forth in D above, Seller shall have no liability or obligation to Buyer or any other persons for any claim, loss, damage or expense of any kind caused in whole or in part, directly or indirectly by the inadequacy of any Products for any purpose, any deficiency or defect in any Products whether or not covered by any warranty, the use or performance of any Products, any interruption or loss of service, use or performance of any Products, or any special, direct, indirect, incidental, or consequential damage, including, without limitation, personal injury or loss of business or profit, or other damage, whether or not Buyer shall have informed Seller of the possibility or likelihood of such or any other damages.
7.5 Buyer’s Indemnification of Seller, etc. re Third-Party Claims
Buyer agrees to indemnify and hold Seller harmless and defend Seller in the first instance with respect to any and all liability, loss, cost or damage from claims from any party or parties (including, without limitation, claims by Buyer’s customers, employees, contractors, subcontractors and agents, or their respective employees and workers’ compensation insurance companies or the Buyer’s or their subcontractors’ workers’ compensation insurance companies) for personal injuries or death or damage to property (tangible or intangible) arising out of the existence or use of the Products or any defect in the Products, whether or not such liability, loss, cost or damage is occasioned in whole or in part by any actual or alleged act or omission of Seller, its representatives, employees, subcontractors, vendors or suppliers, or by any defect in the Products whether or not it is contended that Seller contributed thereto in whole or in part or was responsible therefore by reason of non-delegable duty.
7.6 Seller’s Technical Assistance and Support Services
Seller offers its Technical Assistance and Support Services solely as a convenience to Buyer. While Seller strives to provide useful information regarding the Products Seller does not guarantee that any information or recommendation provided is accurate, complete, or correct, and Seller shall have no responsibility or liability whatsoever in connection with any information or recommendation provided, or Buyer’s reliance on such information or recommendation. Buyer is solely responsible for analyzing and determining the appropriateness of any information or recommendation provided by Seller’s personnel, and any reliance on such information or recommendation is at your sole risk and discretion.
8. Risk of Loss
Once Products are placed by Seller at the loading dock at Seller’s facility or such other location as Seller and Buyer have agreed upon, risk of loss passes to Buyer.
9. Demurrage Charges by Carriers; Storage Charges; by Others
Once Buyer’s carrier places Products on its trucks for delivery to another location in the United States or elsewhere, any demurrage charges by Carriers or Storage Charges by others are the responsibility of Buyer.
10. Buyer’s Acceptance of a Product; Procedure for Buyer Giving Notice of Non- acceptance and Return of Product; Samples of Product Claimed to be Defective
10.1 All Products shall be deemed accepted by Buyer unless, within thirty (30) days from Buyer’s first use of the Product, Buyer shall notify Seller in writing that such Products are not for any reason in conformity with the applicable Purchase Order.
10.2 No return of Products may be made unless an authorized Seller’ representative agrees to specific terms and conditions of the return and issues the Buyer a Return Authorization Form (an “RMA”)
10.3 If Buyer claims that the Product is defective, Buyer must immediately take a reasonable amount of unaltered samples of product from production process and hold and preserve the samples until receipt of instructions from Seller as to the performance of analysis of the samples. Failure to do so will void any claim. Seller may direct Buyer to have the samples shipped to Seller or an independent laboratory or facility.
11. Default by Buyer in Payment
11.1 In the event of Buyer’s default in payment for the Products, Buyer shall be responsible for all reasonable costs and expenses incurred by Seller in collection of any sums owing by Buyer and Seller shall not be obligated to make any further deliveries to Buyer. Such reasonable costs and expenses shall include, but not be limited to, reasonable attorney’s fees.
11.2 Any payment made later than ten (10) days from its due date shall thereafter bear interest at the rate of eight (8%) percent per annum.
11.3 Should Buyer elect to cancel a Purchase Order Buyer shall be liable to Seller for reasonable cancellation charges which shall include, but not be limited to, all costs and expenses incurred by Seller in connection with procuring and filling the Purchase Order.
12. Force Majeure
Seller will not be liable for any failure or delay in its performance for Buyer or for any damages suffered by Buyer by reason of such delay, when such delay is, directly or indirectly, caused by, or in any manner arises from, fires, floods, accidents, riots, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials or supplies, transportation delays, delays in deliveries by Seller’s vendors or any other cause or causes (whether or not similar in nature to any of these hereinbefore specified) beyond its control.
13. Product Information furnished by Seller
13.1 Seller makes every effort to provide current and accurate information relating to the Products but does not guarantee the currency or accuracy of any such information.
13.2 In the event Seller discovers a material error in the description or availability of a Product that affects an outstanding Purchase Order, or an error in pricing, Seller will notify Buyer of the corrected version; and Buyer may choose to accept the corrected version or cancel the Purchase Order.
14. Legal Severability
If any part of the Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable; it will not impact any other provision of the Agreement, all of which will remain in full force and effect.
15. Non-Binding Mediation before Litigation
15.1 Agreement to Mediate
(a) All claims or disputes arising out of or in any way relating to this Agreement or any of the parties’ respective rights and obligations arising out of this Agreement, the parties agree that before proceeding to litigation they will first submit the claim or dispute to non-binding mediation by a single mediator in Northern New Jersey, under the auspices of (1) the American Arbitration Association (the “AAA”), in accordance with the AAA’s “Commercial Mediation Rules” then in effect, or, providing the parties so agree, (2) under the auspices of Judicial Arbitration and Mediation Services (“JAMS”) or another mediation service.
(b) Seller and Buyer may not institute any legal action against any other party unless the mediation proceedings have been terminated as a result of a written declaration of the mediator that further mediation efforts are not worthwhile.
15.2 Expenses of Mediation
The fees of the AAA or other mediation service and the mediator shall be borne one-half by Seller and one half by Buyer.
15.3 Enforceability
A party’s right to mediation may be specifically enforced by said party.
15.4 Certain Limitations
All statements, promises, offers, views and opinions made or communicated by any party in the mediation proceeding shall be subject to the New Jersey Uniform Mediation Act, N.J.S.A. 2A:23C-1 et. seq.
16. Choice of Law; Venue for Litigation
16.1 Any and all disputes between Seller and Buyer (collectively, “Disputes”) are governed by, and will be interpreted in accordance with, the laws of the State of New Jersey, without regard to any conflict of laws principles.
16.2 Litigation of any Dispute not resolved by mediation can only be venued in a state or federal court situated in the State of New Jersey, and Buyer hereby irrevocably submit to the personal jurisdiction of such courts for that purpose.
17. Entire Agreement; Non-Waiver
17.1 This Agreement constitutes the entire agreement of the parties with respect to the terms and conditions set forth herein.
17.2 No waiver by Seller of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.