FERGUSON ENTERPRISES, LLC.
TERMS AND CONDITIONS OF SALE
1. ENTIRE AGREEMENT:
- These Terms and Conditions of Sale (the “Terms”) establish the rights, obligations, and remedies of Ferguson Enterprises, LLC, and/or its wholly owned affiliates (“Seller”) and the buyer (“Buyer”), form the entire agreement between Seller and Buyer, and apply to all sales transactions between Seller and Buyer unless otherwise speciﬁcally agreed to in writing by both parties. All prior oral or written agreements, including, but not limited to, terms in Buyer’s purchase order, which are diﬀerent from or in addition to these Terms are not binding on Seller unless expressly accepted in writing by Seller’s duly authorized representative.
- All orders are shipped FCA, Seller’s facility (Incoterms® 2020). Risk of loss will transfer to Buyer upon tender of products and/or parts (“Goods”) to Buyer, Buyer’s representative or common carrier. The cost of any special packaging or handling caused by Buyer’s requirements or requests will be added to the amount of Buyer’s order. If Buyer causes or requests a delay of shipment, or if Seller ships or delivers an order erroneously as a result of inaccurate, incomplete, or misleading information supplied by Buyer or Buyer’s agents or employees, all storage and other additional costs and risk will be borne by Buyer.
- All prices are subject to change unless otherwise noted on Seller’s applicable quotation. Buyer will be invoiced at prices in eﬀect at the time of shipment. All taxes, transportation costs, duties and other charges are in addition to quoted prices. The amount of any sales, excise or other taxes, if any, applicable to the Goods shall be added to the purchase price and shall be paid by Buyer unless Buyer provides Seller with a valid tax exemption certiﬁcate.
- Seller will make a good faith eﬀort to deliver Goods in accordance with Buyer’s schedule. Seller will pay for expedited shipping of delayed Goods if the delay in delivery is solely caused by Seller. Seller assumes no responsibility or liability for Seller’s non-performance caused by a force majeure event including, but not limited to an act of God, war, labor disputes, civil unrest, accidents, pandemics, the inability to obtain materials or Goods, delays of carriers, contractors or suppliers, or any other causes beyond Seller’s control.
- Buyer may not cancel or modify an order without the written consent of Seller and payment by Buyer of all applicable cancellation or re-stocking fees.
- Buyer shall pay for the Goods Net 10th Prox from date of Seller’s invoice. In the event of a late payment, Seller is entitled to treat Buyer’s entire account(s) as immediately due and payable without notice or demand. All past due amounts will be subject to a service charge accruing at a rate of up to 1.5% per month. Buyer shall not be allowed to retain or holdback payment and Buyer’s payment obligations are not contingent on any event other than Seller’s performance. Buyer’s receipt of payment or funds from any third party shall in no way relieve Buyer’s obligations to pay Seller. Buyer is not entitled to set-oﬀ any amounts due to Seller by Buyer in connection with any transaction governed by these Terms. Buyer’s credit application to Seller is hereby incorporated by reference.
- To the extent payment is received by Seller without retention, Seller warrants there are no liens on the furnished work or the Goods. Seller shall execute mutually agreed and appropriate lien waivers upon request of Buyer; provided that Seller shall have no obligation to provide lien waivers, release of claims or other documents from its suppliers and/or subcontractors. Any lien waivers shall be conditioned upon full payment to Seller by Buyer. Seller does not relinquish any statutory lien and/or bond rights; such rights are only relinquished to the extent payment is actually received without retention. Any provision in a lien waiver that waives rights beyond payment shall be null and void.
8. INSPECTION AND ACCEPTANCE:
- Buyer shall examine all Goods upon receipt and prior to installation. All claims for damage, shortage, and errors in shipment or improper delivery must be made to Seller in writing within two (2) business days of delivery, after which date Buyer will be deemed to have accepted the Goods and will have no right to reject the Goods or to revoke acceptance. Buyer must make any claims for billing errors or adjustments to Seller in writing within ten (10) business days from the invoice date. Claims not received in writing within such period of time will be waived by Buyer.
- Within 30 days of purchase, Buyer may return any Goods which Seller stocks and which are not special order items if: (i) the Goods are in new condition, suitable for resale in undamaged original packaging and with all original parts; and (ii) the Goods have not been used, installed, modiﬁed, rebuilt, reconditioned, repaired, altered, or damaged. All returns are subject to a re-stocking fee, unless otherwise agreed to by Seller. Special orders or non-stock Goods may be returned if the manufacturer is willing to accept the return and Buyer agrees to reimburse Seller for any restocking or cancellation fees charged by the manufacturer.
10. COMPLIANCE WITH EXPORT CONTROL LAWS:
- Buyer warrants that it is not subject to U.S., E.U., or U.N. sanctions, including, but not limited to, being identified on the U.S. Specially Designated Nationals (SDN) List, or more than 50 percent owned by an SDN. Buyer further acknowledges that Goods are subject to U.S. export control laws and regulations and cannot be exported, reexported, or transferred except in compliance with such laws and regulations. If Seller delivers Goods to Buyer within the United States, Buyer expressly assumes any and all duties and liability associated with subsequent export of the Goods, including but not limited to determining export licensing requirements, obtaining all required authorizations, and submitting Electronic Export Information, if required. In such case, Seller shall not be named as the Exporter of Record with respect to the Goods.
- (A) Private Label Goods: Unless otherwise speciﬁed in the product speciﬁcations, Seller warrants title to the Goods and that for a period of twelve months after delivery to Buyer, Seller’s Private Label Goods shall conform to their speciﬁcations and be free from defects in material or workmanship. Buyer’s sole and exclusive remedy for non-conformity with these warranties shall be repair or replacement of the non- conforming Goods at Seller’s expense, or refund of the purchase price for non-conforming Goods returned during the warranty period.
- Each party (“Indemnitor”) shall indemnify, defend and hold harmless the other party and its employees, oﬃcers, directors, and agents (each an “Indemnitee”) from any suit, cause of action, arbitration/mediation proceeding, judgment, or claim (“Claim”) for damages to property or bodily injury, loss of life, infringement, liability of any nature, costs, fines, penalties, and expenses, including reasonable attorney fees and any other cost of litigation (“Damages”) to the extent caused directly by the negligent act or omission or intentional misconduct of the Indemnitor. Indemniﬁcation shall not apply to Damages proximately caused by the negligence of Indemnitee.
- Seller shall maintain all insurance as required by law and shall not allow such coverage to lapse. Seller agrees to maintain Worker’s Compensation coverage as required by applicable state law, $2 million per occurrence and $4 million aggregate in commercial general liability coverage, including product liability coverage, and $5 million in automobile liability coverage. All such coverage can be met through a standard, umbrella, or any combination of policies thereof. Seller is not bound to pay any premium or other fee to an Owner Controlled Insurance Program (“OCIP”) or Contractor Controlled Insurance Program (“CCIP”) type insurance program. Unless expressly provided in Seller’s quotation to Buyer, payment and performance bonds are not to be provided by Seller.
14. LIMITATION OF LIABILITY:
- IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY, LIQUIDATED, OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUES, CAPITAL, BUSINESS OPPORTUNITY OR DOWNTIME COSTS, ARISING OUT OF THE SALE OF GOODS AND/OR SERVICES TO BUYER. This limitation shall apply regardless if the claimed damages arise from breach of contract, breach of warranty, tort, strict liability, or any other legal theory.
15. U.S. GOVERNMENT CONTRACTS:
- If Buyer is procuring items as a contractor, or subcontractor at any tier, for the direct or indirect sale to any agency of the U.S. Government, and/or is funded in whole or in part by any agency of the U.S. Government, Buyer agrees all Goods provided by Seller meet the definition of a “commercial product”, specifically a “commercially-available-off-the-shelf (COTS) item”, as those terms are defined in Federal Acquisition Regulation (“FAR”) 2.101. Buyer agrees all Goods are provided by Seller on a firm-fixed-price basis, as governed by 48 C.F.R. Part 12 and its implementing clauses. To the extent the Buy American Act, Buy America Act, Trade Agreements Act, or other domestic preference requirements are applicable the country of origin of Goods is unknown unless otherwise specifically stated by Seller in writing. Seller agrees to incorporation of mandatory flow-down clauses aligned with the value of the Agreement, those FAR and Defense Federal Acquisition Regulation Supplement (DFARS) clauses applicable to COTS products, and those clauses that apply to the specific Goods provided under these Terms. Clauses that are not applicable by their terms are self-deleting and not applicable under these Terms. The version of any applicable FAR or DFARS clause listed in this Clause 15 shall be the one in effect on the date of sale.
- These Terms will be construed as if prepared jointly by the parties hereto and any uncertainty or ambiguity will not be interpreted against any one party. If any provision contained in these Terms is held to be unenforceable then such provision will be given eﬀect in such reduced form as may be decided by a court of competent jurisdiction, provided that, if any provision should be declared unenforceable or invalid for any reason, such unenforceable or invalid provision will be severed from the remainder of these Terms without aﬀecting the enforceability or validity of the remaining provisions.
- The failure of Seller to insist upon the strict performance of any of these Terms will not be deemed to be a waiver of any of the rights or remedies of Seller, nor of its right to insist upon strict performance of such term or of any other term in the future. No waiver of any of these Terms will be valid unless in writing signed by a duly authorized representative of Seller.
18. DISPUTE RESOLUTION:
- The parties shall attempt in good faith to resolve promptly any dispute arising out of or relating to these Terms by negotiation between executives who have authority to settle the dispute. The executives must be at a higher level of management than the persons with direct responsibility for administration of these Terms. If a dispute cannot be resolved by negotiation, then either party may bring a legal action in accordance with Section 19 of these Terms.
19. GOVERNING LAW:
- For Goods and/or services delivered within the United States, all disputes related to or arising out of a Buyer’s order shall be governed by the laws of the jurisdiction where the applicable Goods are delivered and/or services are performed, excluding the rules on the conflict of laws. For Goods and/or services delivered outside of the United States, all disputes related to or arising out of Buyer’s order shall be governed by the laws of the Commonwealth of Virginia, excluding the rules on the conflict of laws. Any legal action related to or arising out of Buyer’s order shall be brought in the relevant state or federal court in such jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods, and any successor thereto, shall not apply.
Rev. June 2023
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