Formspec LTD Terms and Conditions of Sale / Rental (“Terms”)
These Terms apply to all Formspec LTD sales and rentals of products, including concrete accessories, chemicals, forming and paving products (“Product(s)”). If Formspec LTD issues a quotation or proposal (“Quotation”) to its customer (“Customer”) that the Customer timely accepts by issuance of a purchase order or by acceptance of Products (or by other means acceptable to Slab Specialists), the Quotation and these Terms will constitute the entire agreement between Formspec LTD and Customer with respect to the Products (collectively, the “Contract”). Otherwise, the entire Contract shall consist of Formspec LTD order acknowledgement and these Terms. By issuing a purchase order against a Quotation or accepting Products, Customer expressly agrees that these Terms govern and that no other terms shall apply unless in writing and signed by an authorized representative of Formspec LTD expressly rejects any additional, inconsistent or conflicting terms proposed by Customer. Clerical errors are subject to correction in all cases.
- Purchase Price or Rental Charge; Quoted prices or rental charges are firm only for orders placed against the Quotation within 30 days after it is issued and are valid only if all items, quantities and sizes listed in the Quotation or order acknowledgement are purchased or rented and only if the Products are to be shipped within Formspec LTD normal production and shipping schedule. Orders otherwise are subject to revised pricing. Quotation prices and rental charges do not include but are subject to taxes and all other governmental charges that may be imposed at any time, including goods and services, sales, use and similar taxes. Formspec LTD shall invoice and Customer shall pay or reimburse Formspec LTD for any such amounts. Purchase charges shall be invoiced at the time of shipment. Customer is responsible for payment of all made-to-order products, even if Customer cancels the order and the products do not ship. Rental charges shall be invoiced monthly, with charges beginning on the date of shipment and ending on the date the Products are returned to the Formspec LTD warehouse as shown on the shipping documents. Customer agrees to pay for a minimum of one month’s rental, with any additional partial months being pro-rated, with each week assumed to have seven days and each month assumed to have twenty eight days. Except as expressly agreed otherwise in the Quotation or order acknowledgment, Customer shall pay each invoice within 30 days after the date of invoice. All payments shall be made without set-off, deduction or counterclaim.
- Delivery; Risk of Loss; Inspection and Claims. Unless expressly agreed in the Contract, Formspec LTD does not guarantee or assume any liability for failure to meet any delivery date proposed or requested by Customer or Slab Any failure of Formspec LTD to deliver at a specific time or at all will not entitle Customer to treat an agreement the subject of these Terms as repudiated. In the case of paving Products, Customer shall provide Formspec LTD with a requested delivery date at the time of order. Prior to the order entering production, Formspec LTD will contact Customer to verify the requested delivery date and Customer shall, by electronic mail, fax, or letter, confirm in writing the requested delivery date. Formspec LTD will not begin production on the order until this written confirmation is received from the Customer.
Unless otherwise agreed at the time of order, all Products will ship Ex Works Formspec LTD warehouse, prepaid, via Formspec LTD selected carrier and Customer shall pay all transportation charges from Formspec LTD shipping point to destination, with shipping charges added to Customer’s invoice. Risk of loss shall pass to Customer upon delivery to the carrier at Formspec LTD shipping point.
Formspec LTD remains the legal and beneficial owner of all Products sold by Formspec LTD to the Customer under these Terms until all amounts due in respect of those Products have been paid to Formspec LTD in cleared funds. This applies even if the Customer installs the Products or commingles the Products with other products. Except to the extent agreed to in writing by Formspec LTD the Customer must hold the Products as Formspec LTD fiduciary bailee. The Customer must notify Formspec LTD of all premises at which it holds any Products supplied under these Terms. If (a) the Customer fails to pay any amount (whether in part or whole) payable in respect of any Products by the time required for payment; (b) the Customer becomes subject to insolvency or administration, Formspec LTD may, without notice to the Customer, enter at any reasonable time any premises where Products are located (or believed by Formspec LTD to be located) and take possession of those Products not paid for and any other Products to the value of the amount owing. Formspec LTD permission to enter those premises for that purpose is irrevocable. Formspec LTD is not liable to the Customer in contract, tort or otherwise, for any costs, damages, expenses or losses incurred by the Customer as a result of any action taken by Formspec LTD under this section. The Customer must reimburse to Formspec LTD all costs incurred the by Formspec LTD in exercising its rights under this section. (See 4 below regarding ownership of Rental Products).
Customer shall inspect Products upon receipt at the destination and notify Formspec LTD in writing of any shortages or readily ascertainable damaged or defective Products within 72 hours after delivery. Failure of Customer to timely notify Formspec LTD shall relieve Formspec LTD of any liability. All claims for loss or damage in transit must be made by Customer against the carrier.
- Customer Pick-up/3rd Party At the time of order, Customers may arrange to pick up orders when available at identified Formspec LTD facilities and/or request Collect or 3rd party billing on a Customer-specified carrier if preferred (Ex Works). For LTL/parcel shipments requested Collect or 3rd party bill, Formspec LTD will make the arrangements directly with the Customer-specified carrier. For truckload shipments, the Customer may make their own arrangements or provide carrier information for Formspec LTD to make the arrangements. The following guidelines will also apply.
- Accessory and Chemical Products—In the case of Customer pick-up or Customer arranged freight, Formspec LTD will hold the ordered Products on its docks for a maximum of five (5) business days from the date of If the Customer/Carrier fails to pick up the ordered Products by the end of the fifth business day, Customer agrees that either: (i) by the end of the sixth business day, Customer will instruct Formspec LTD to arrange for freight and have the freight charges added to the Customer’s order and invoice; (ii) if the Products are not made-to-order, the order will be cancelled and Customer agrees to pay Formspec LTD a restocking fee of 25% of the value of the order, which will be invoiced to the customer; or (iii) if the Products are made-to-order, the order will be cancelled, Customer shall pay Formspec LTD the full price of the order and Formspec LTD shall have no obligation to retain or store the Products.
- Paving Products— In the case of Customer pick-up or Customer arranged freight, Formspec LTD will hold the ordered Products on its docks for a maximum of ten (10) business days from the date of If the Customer/Carrier fails to pick up the ordered Products by the end of the tenth business day, Customer agrees that either: (i) by the end of the eleventh business day, Customer will instruct Formspec LTD to arrange for freight and have the freight charges added to the Customer’s order and invoice; or (ii) it will incur a $500.00 per day handling and storage charge that will be added to the Customer’s invoice until the order is picked up or delivered.
- Forming Products— In the case of Customer pick-up or Customer arranged freight, Customer shall provide Formspec LTD with a request delivery date at the time of order. Formspec LTD will contact Customer to verify the requested delivery date and Customer shall, by electronic mail, fax, or letter, confirm in writing the requested delivery date. Formspec LTD will not begin pulling the order for shipping until this written confirmation is received from the Customer. Formspec LTD will hold the ordered Products on its docks for a maximum of ten (10) business days from the date of order. If the Customer/Carrier fails to pick up the ordered Products by the end of the tenth business day, Customer agrees that either: (i) by the end of the eleventh business day, Customer will instruct Formspec LTD to arrange for freight and have the freight charges added to the Customer’s order and invoice; or (ii) it will incur a $500.00 per day handling and storage charge that will be added to the Customer’s invoice until the order is picked up or delivered.
Customer agrees that the restocking fees and handling and storage charges set out in this section represent a genuine pre-estimate of the loss likely to be suffered by Formspec LTD if the Customer/Carrier fails to pick up the ordered Products by the specified delivery date.
- Ownership and Use of Rental Products. This section 4 applies to all Products that Formspec LTD agrees to rent to Customer (“Rental Products). Formspec LTD shall retain title to Rental Products. Customer shall have the option to purchase Rental Products if and to the extent set forth in the Contract, subject to these Customer shall not make any alterations, additions, or improvements to, and shall not deface, remove, or cover any Formspec LTD markings on, Rental Products without Formspec LTD prior written consent. Upon request, Customer shall advise Formspec LTD as to the exact location of Rental Products and agrees not to move Rental Products without Formspec LTD prior written consent. Formspec LTD shall have the right to enter Customer’s premises or other location of the Rental Products at reasonable times and with reasonable notice to Customer, to inspect Formspec LTD Rental Products. Customer shall keep Rental Products free and clear of all encumbrances and levies (other than those of Slab Specialists). Customer irrevocably authorizes Formspec LTD to execute and / or file a financing statement or other notice in any jurisdiction with respect to any actual, impending or likely security interest created by the Contract. Rental Products do not include wood of any kind, except as part of a prefabricated panel or other prefabricated Rental Product. Customer shall be responsible for unloading, cleaning, assembling, and erections of Rental Products. Customer shall cause Rental Products to be used only by competent operators in a safe and proper manner in compliance with all applicable laws, regulations, rules, and manufacturer’s instructions (including maintenance) and solely for the purposes for which they are intended.
- Warranty against defects. Formspec LTD warrants, for a period of 60 days from the date of shipment (three years from the date of shipment in the case of formwork, excluding any consumable Products included with such formwork), that Products and any associated application drawings and engineering services provided by Formspec LTD (“Ancillary Services”) will be free from defects in material and workmanship and, in the case of custom designed formwork, that the formwork will meet the specifications set forth in the design drawings approved by Formspec LTD and Customer. Customer’s benefits under this warranty are in addition to other rights and remedies Customer has under law in relation to a Product and/or Ancillary Any claim under this warranty must be made in writing and received at Formspec LTD office at 1125 Byers Road, Miamisburg, Ohio, 45342, USA within such warranty period. If any Product and/or Ancillary Service covered by a timely claim are found to be defective, Formspec LTD will, within a reasonable time, make any necessary repairs or corrections or, at Formspec LTD option, replace the Product. Products presented for repair may be replaced by refurbished products of the same type rather than being repaired. Refurbished parts may be used to repair the products. If a faulty Product cannot be repaired, or an identical Product is not available at the time of repair or replacement, Formspec LTD reserves the right to replace any faulty Product with a Product of similar quality. Repair or replacement of the Product or a part does not extend or restart the warranty period. Unless pre-authorized by Formspec LTD in writing, Formspec LTD will not accept any charges for correcting defects or for making a warranty claim or accept the return of any Product. This warranty will not apply to any Products that have been subjected to misuse, neglect, storage damage, misapplication, accident or any other damage caused by any person other than Slab Specialists, or that have not been maintained in accordance with Formspec LTD specifications. Formspec LTD Products come with guarantees that cannot be excluded under the Australian Consumer Law. Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. Customer is also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure.
- Statutory Warranties and Terms, conditions, warranties and guarantees implied by law, including the Australian Consumer Law, that cannot be excluded, restricted or modified apply to these conditions to the extent required by that law. Formspec LTD excludes all other terms, conditions, warranties and guarantees which would otherwise be implied concerning the activities covered by these Terms. Customer agrees that its acquisition of the Products is not for personal, domestic or household use or consumption, and each Contract is not a ‘consumer contract’ for the purposes of the Competition and Consumer Act 2010 (Cth). Formspec LTD liability in respect of a breach of a term, condition, warranty or guarantee implied by legislation, will be limited, at Formspec LTD option, to: (a) if the breach relates to supply of goods: (i) replacement of the goods; (ii) repair of the goods; or (iii) the payment of the cost of having the goods repaired or replaced; and (b) if the breach relates to services: (i) re-supply of the services; or (ii) the payment of the cost of having the services re-supplied.
- Limitation of Where Formspec LTD is permitted to limit its liability and subject to section 6, Formspec LTD sole liability under any Contract and at all times with respect to the Products and the Ancillary Services, including for negligence, tort, or breach of contract, breach of statutory duty, or breach of a condition, warranty or guarantee, shall in any event be limited to direct damages (which expressly excludes lost profits, revenues, incentives and back charges) and then only to, at the most, the purchase price of the relevant Products paid by Customer or the amount paid for rental of the Rental Products. Formspec LTD shall have no other liability to or through Customer whatsoever, whether based on breach of contract, negligence, gross negligence, strict liability or otherwise. IN NO EVENT SHALL Formspec LTD BE LIABLE FOR LOST PROFITS, REVENUES, LOST INCENTIVES OR BACK CHARGES, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT, THE PRODUCTS OR THE ANCILLARY SERVICES.
- Formspec LTD shall not be responsible for delays in performance caused, directly or indirectly, by any act of God, accident, war, force of arms, fire, elements, riot, labor dispute, strike, sabotage, civil commotion, act of terrorism, government action, transportation interruption, inability to obtain materials or labor, Customer’s failure, or delay in approving any design or other drawings or any other contingencies beyond Formspec LTD reasonable control.
- Indemnification by Customer shall be responsible for, indemnify, defend and hold Formspec LTD harmless from and against all liabilities, claims, judgments, costs, damages and expenses (including reasonable attorneys’ fees and expenses) including for personal injury, death, property damage or otherwise, arising out of or relating to the use of the Products and/or the Ancillary Services and any other act, or omission by Customer or any subcontractor, agent, sublessee, employee, or purchaser of or from, Customer with respect to the Products and/or the Ancillary Services, unless resulting from the gross negligence or willful misconduct of Slab Specialists.
- Documentation; Product Any specifications, plans, drawings or application recommendations furnished by Formspec LTD to Customer (“Documentation”) are provided only as a service to Customer to conceptually illustrate the assembly and use of Products. Such Documentation is not intended to be fully directive nor to cover all engineering details on Products, on products or materials not furnished by Slab Specialists, or on their interconnection. Inasmuch as Formspec LTD does not control jobsite assembly or procedures, grade or quality of materials, or equipment supplied by others, it is the responsibility of Customer to integrate Documentation into composite drawings and information suitably complete for construction purposes. In the case of custom designed formwork, design drawings will be furnished by Formspec LTD for Customer’s approval prior to any fabrication by Formspec LTD shall not be responsible for any deviations, changes or alterations to the recommended assembly details described in forming layout drawings unless such deviations, changes or alterations are illustrated in a revised design drawing provided by Formspec LTD or are approved in writing by Formspec LTD shall at all times retain ownership of all Documentation and other technical data (“Product Data”) with respect to the Products and the Ancillary Services, and unless duly authorized by Slab Specialists, Customer shall not disclose any such Product Data to any other person. Upon Formspec LTD request, Customer promptly shall return to Formspec LTD all copies of Product Data.
- Default; Termination. If Customer fails to timely pay any invoice or to perform any other obligation under the Contract: (a) all amounts Customer owes to Formspec LTD become immediately payable despite any previously agreed credit terms or conditions; (b) Formspec LTD may suspend or cancel any undelivered orders to Customer; (c) Formspec LTD may charge Customer interest on any amount outstanding, commencing on the day after the due date for payment and ending on the date when the payment is received by the Company. The interest rate charged will be equal to the cash rate target specified by the Reserve Bank of Australia on each day the payment is due plus six percent (6%).
- Customer shall reimburse Formspec LTD expenses (including, but not limited to, court costs, interest and reasonable attorneys’ fees and expenses) in collecting any amounts owed by Customer arising out of the Contract, including but not limited to expenses incurred by Formspec LTD in protecting its rights under the Contract.
- Compliance with Governmental To apply, any standards or requirements of law or governmental regulations must be expressly and specifically set forth in writing in the Contract. Otherwise, Formspec LTD shall have no liability or obligation to Customer with respect to the failure of the Products to comply with any such standards or requirements.
- (Australian customers). (a) Words in italic will have the meanings and definitions set out in the Personal Property Securities Act 2009 (Cth)(PPS Law). (b) This section applies to the extent that Formspec LTD has a security interest in anything supplied to the Customer. (c) Customer agrees that Formspec LTD may do anything it considers necessary, including but not limited to registering on the register any security interest to perfect Formspec LTD security interest as a first priority interest under the PPS Law. Customer agrees to do all things including signing any document which Formspec LTD reasonably requires to assist Formspec LTD to undertake the matters set out above. (d) Customer waives, pursuant to section 157(3) of the PPS Law, the right to receive notice of a financing statement or a verification statement in relation to any registration on the register. (e) Formspec LTD and Customer agree that pursuant to section 115 of the PPS Law the provisions in the PPS Law mentioned in that section are contracted out of insofar as they require Formspec LTD to give any notice or statement to the Customer or allow any period of time or grant any opportunity to remedy to Customer. (f) Solely to preserve their confidentiality, to the extent allowed under section 275 of the PPS Law, Customer and Formspec LTD agree that neither will disclose information if requested by a third party under section 275(1) of the PPS Law. (g) Customer agrees that any rights of Formspec LTD under the Contract are in addition to and not in substitution for its rights under the PPS Law. (h) Customer must not without Formspec LTD consent specify an order of application of payments made to Formspec LTD different to that set out in section 14 of the PPS Law or different to any other order specified by Formspec LTD from time to time. (i) Customer undertakes to give Formspec LTD not less than 14 days prior notice of any proposed change in the Customer’s name or any other change in the Customer’s details (including, but not limited to, changes in its address, phone or facsimile number and trading name).
- Personal Property Securities Act 1999 (“PPSA”) (New Zealand customers). (a) Upon assenting to these Terms, the Customer acknowledges and agrees that: (i) these Terms constitute a security agreement for the purposes of the PPSA; and (ii) a security interest is taken in all Products supplied by Formspec LTD to the Customer (if any) and all Products that will be supplied in the future by Formspec LTD to the Customer. (b) The Customer undertakes to: (i) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Formspec LTD may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; (ii) indemnify, and upon demand reimburse, Formspec LTD for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Products charged thereby; (iii) not register a financing change statement or a change demand without the prior written consent of Slab Specialists; and (iv) immediately advise Formspec LTD of any material change in its business practices of selling Products which would result in a change in the nature of proceeds derived from such sales. (c) Formspec LTD and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions. (d) The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA. (e) Unless otherwise agreed to in writing by Slab Specialists, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA. (f) Notwithstanding clause 16 below, this clause will be governed by the laws of New Zealand.
Governing Law and Exclusive The Contract shall be governed by, and construed in accordance with, the laws in force in the State of New South Wales without giving effect to the conflict of law principles and shall be binding upon any and all successors and assigns of the parties hereto and shall not be construed in whole or in part against any party solely because of the fact that the party drafted it. The exclusive jurisdiction for any dispute arising out of the Contract shall be in a court of competent jurisdiction located in State of New South Wales, the parties agree to personal jurisdiction and that all discovery, including depositions, shall be conducted therein.
- The Contract may not be amended except in writing and signed by an authorized representative of Slab Specialists. Customer may not cancel orders under this Contract for customized Products without Formspec LTD written consent. Customer shall not assign the Contract without Formspec LTD prior written consent and the full release of Formspec LTD from any obligations with respect to the Products. Any provision of the Contract that is invalid under applicable law or court order shall not in any way invalidate or affect the remaining provisions of the Contract. These Terms may be changed by Formspec LTD from time to time by giving notice of the change to Customer. Notice is deemed to have been given (whether actually received) when Formspec LTD does any of the following: (a) sends notice of the change to Customer at any address (including an email address) supplied by Customer; (b) or publishes the amended Terms on Formspec LTD website. The amended Terms will apply to any order or part of an order from the time of amendment.