The following terms and conditions apply to all sales by Focus Tools, LLC (“Focus”)
QUOTATIONS AND ORDERS: Quotations by Focus shall be deemed to be offers by Focus to sell the goods described therein subject to these Terms and Conditions. All quotations will remain open for acceptance for thirty (30) days from the date of the quotation. Purchase orders submitted by Buyer for the goods quoted by Focus shall be subject to and will be deemed to constitute acceptance of these Terms and Conditions and the quotation provided by Focus. All purchase orders will be subject to approval by Focus.
PRICE AND PAYMENT: The prices stated in Focus’ quotation do not include sales, use, excise, value added, GST, or other taxes, or customer duties, costs of non-standard packaging, or insurance. Buyer shall pay all such taxes, duties and costs directly, or reimburse Focus within the time required for payment of purchase. Unless otherwise agreed by Focus, payment terms shall be net 30 days. Late payments shall be subject to an interest charge at 1 ½ % per month, plus all costs and fees related to collection of amounts due, including without limit, reasonable attorney’s fees. Buyer shall make no set-off deduction for any amounts due and owing.
CHANGES, MODIFICATION, WAIVER: Every customer order must be acknowledged by Focus in writing, and no orders may begin processing until Focus receives written customer approval, or a new purchase order if any changes regarding delivery date(s), price(s) or necessary product descriptions are modified from the original purchase order on the order acknowledgement. No change in specifications, drawings, or delivery for the goods may be made without Focus’ authorized representative’s express approval. Focus’ waiver of any of Buyer’s default under any term or condition shall not constitute a waiver of any further defaults. Focus reserves the right to adjust the price of the original quotation when initial production of Buyer product represents a production alteration versus original quotation. Such requests for production alteration must be in writing and signed and/or acknowledged by both Buyer and Seller.
DELIVERY AND RISK OF LOSS: All sales are F.O.B. from Focus’ plant or other point of shipment designated by Focus. Shipping dates are estimates only, are not guaranteed, and are based upon prompt receipt of all necessary raw materials, shipping arrangements, and other necessary information. Focus reserves the right to make delivery in installments with all installments separately invoiced, and subject to the payment terms contained herein, without regard to subsequent deliveries.
Unless otherwise agreed by Focus and Buyer, Focus shall package and arrange for shipping of all goods to Buyer. Freight and handling charges incurred by Focus shall include a charge by Focus for packaging and handling that shall be paid by Buyer pursuant to the payment terms. Delivery of goods to a commercial carrier at Focus’ plant or other loading point shall constitute delivery to Buyer with Buyer assuming any risk of loss, additional cost, and all responsibility thereafter for claims, delivery, loss or damage, including, if applicable, placement and storage. Buyer agrees to promptly inspect all deliveries of goods. Claims for shortages or other errors in delivery must be made in writing to Focus within three (3) days after receipt of shipment. Failure to give such written notice shall constitute unqualified acceptance of the delivery by Buyer and a waiver of any and all claims against Focus by Buyer. Claims for loss or damage to goods in transit by common carrier must be made to the carrier and not to Focus and Buyer expressly waives such claims against Focus herein.
EXCUSABLE DELAYS; FORCE MAJEURE: Focus shall not be liable for any ordinary, incidental, or consequential loss or damage incurred by Buyer including, as a result of Focus’ delay in or failure of delivery due to (i) any cause beyond Focus’ reasonable control, (ii) an act of God, act of the Buyer, embargo or other government act, authority, regulation or request, fire, theft, accident, strike, slowdown or other labor disturbance, war, riot, delay in transportation, or (iii) inability to obtain necessary labor, materials, components, or facilities.
Should any of the aforementioned events occur, Focus, at its sole and discretionary option, may cancel Buyer’s order with respect to any undelivered goods or extend the delivery date for a period equal to the time lost because of delay. Notice of such election shall be given promptly to Buyer. In the event Focus elects to cancel the order, Buyer herein expressly releases Focus of and form all liability for failure to deliver the goods, including, but not limited to, any and all claims on behalf of Buyer for lost profits, or any other claim of any nature which Buyer might have.
STORAGE: If the goods are not shipped within thirty (30) days after notification has been made to Buyer that the goods are ready for shipping, for any reason beyond Focus’ control, including Buyer’s failure to provide timely shipping instructions, Focus may store the equipment at Buyer’s risk and expense in a warehouse or on Focus’ premises. Buyer expressly agrees that it shall be liable for and l pay all handling, transportation, and storage costs at the prevailing commercial rates pursuant the payment terms contained herein following Focus’ submission of invoice for such costs.
LIMITED WARRANTIES: Focus warrants the products manufactured by Focus Tools LLC, sold to the original Buyer, to be free from defects in material and workmanship for a period of one (1) year from the date of original shipment. This warranty shall be limited to Focus, at its sole discretion, replacing or repairing defective parts or products free of charge when the defect or malfunction is (i) determined by Focus to have been caused by a factor other than improper storage, handling, installation, or operation, and (ii) when, based on an investigation and evaluation conducted by Focus, that the product has been applied and used in accordance with Focus’ published specifications, and/or handling, installation, and operating instructions. There will be no charge for parts and labor for any repair or replacement of products qualifying under this limited warranty.
The limited warranty provided herein shall automatically terminate after one (1) year originally shipped to the customer as determined by the original ship date, and/or at the time the goods are: (i) damaged by Buyer regardless of the date such damage occurs; (ii) Buyer fails store or maintain the goods in accordance with Focus’ published specifications, and/or handling, installation, and operating instruction; (iii) a factory seal is broken or the product is modified; (iv) the goods are improperly installed, stored, or operated; or (iv) repaired by someone other than Focus without Focus’ express authorization for a defect or malfunction covered by this warranty. In addition, removal of the serial number will void the warranty.
In no event shall Focus be liable for damages of any kind or nature including incidental or consequential damages if such damages arose out of bodily injury resulting from improper or negligent use or operations of the goods sold, or in the event that the said goods have been altered or improperly repaired. The foregoing warranty and disclaimers may not be altered or modified unless such alterations or modifications are reduced to writing and are signed by an authorized officer of Focus.
Any description of goods, whether in writing or made orally by the Focus or Focus’ agents, specifications, samples, models, bulletins, drawings, diagrams, engineering sheets or similar materials used in connection with Buyer’s order are for the sole purpose of identifying the goods and shall not be constructed as an express warranty unless confirmed to be such in writing by Focus’ authorized officer.
In the event that a subsequent Buyer can provide proof of purchase that demonstrates the product was purchased from the original Buyer within one year of subsequent Buyer’s receipt, Focus will then honor the date on the proof of purchase as the beginning of the warranty period and the limited warranty contained herein will be extended to the subsequent Buyer. This proof of purchase must have the serial number of the Focus unit that was purchased.
All warranty claims are subject to Focus’ approval and can be denied at its sole discretion based upon the conditions stated herein. Focus assumes no responsibility for reimbursing any repair or replacement costs incurred without the express written consent of Focus. Defective parts must be returned, shipping charges prepaid to Focus after Buyer receives authorization from Focus to make such a return. Focus shall pay costs associating with shipping replacement parts to Buyer by surface transportation only. Buyer shall assume air or priority shipping costs associated with the return of replacement parts to Buyer.
THE ABOVE WARRANTY MADE BY FOCUS IS MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. ANY IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE IS EXPRESSLY EXCLUDED AS TO ANY PRODUCT MANUFACTURED OR ASSEMBLED BY FOCUS BUT SOLD BY ANY PARTY OTHER THAN FOCUS.
Buyer agrees that any warranty claim in respect to any components that are not manufactured by Focus shall be made directly with the manufacturer of the component and not Focus. Focus denies herein extending any warranty, express or implied, in respect to any components that are not manufactured by Focus.
PATENT INDEMNIFICATIONS: Buyer shall indemnify Focus for any award made against Focus or settlement by Focus for any patent, trademark or copyright infringements including legal fees and defense costs. IN NO EVENT SHALL FOCUS BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ATTRIBUTABLE TO ANY INFRINGEMENT.
SECURITY AGREEMENT AND FINANCING STATEMENTS: To secure payment of the purchase price and of all monies which may be due hereunder, and performance of all of Buyer’s obligations hereunder, Buyer hereby grants to Focus a security interest in all goods sold by Focus and agrees to execute such other Security Agreements and Financing Statements as Focus may reasonably request.
INSURANCE: Until payment in full of the purchase price, Buyer shall maintain insurance covering all goods sold by Focus to Buyer in such amounts and against such risks as is customary by companies engaged in the same or similar business and similarly located, and shall, upon Focus’ request, furnish evidence of such insurance satisfactory to Focus.
DRAWINGS; OTHER DESIGN DATA: All specifications, drawings, designs, data, information, ideas, methods, tools gages, dies, fixtures, patterns and/or executing Buyer’s order will vest in and inure to Focus’ sole benefit notwithstanding any changes therefor which may have been or may be imposed by Focus or Buyer.
Buyer shall not give, loan, exhibit, sell or transfer to any person not then employed by Buyer and authorized to receive such information, or to any organization or entity, any drawing, photograph, or specifications furnished by Focus or reproduction thereof which may enable such person, organization or entity to furnish similar goods or parts therefor. Buyer agrees to not re-engineer or have re-engineered any goods supplied by Focus
GOVERNING LAW AND ARBITRATION CLAUSE: Focus and Buyer agree:
That the validity, interpretation, performance and enforcement of these Terms & Conditions shall be governed by the laws of the State of Colorado, without regard to principles of conflicts of laws, and if applicable, the federal laws of the United States, including the Federal Arbitration Act.
That any and all disputes or differences arising out of, in connection with, or relating to these Terms & Conditions shall be resolved through private, confidential, and binding arbitration held in Denver, Colorado pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The Parties shall agree on the appointment of a single arbitrator to resolve the dispute, or failing to agree within fourteen days after either party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by JAMS, Alternative Dispute Resolution Center, 410 17th Street, Suite 1600, Denver, CO 80202, phone: 303-534-1254. If JAMS is not available the parties shall agree to submit the dispute to the Judicial Arbiter Group (JAG), Inc. 1601 Blake St, Suite 400, Denver, CO 80202, phone 303-572-1919.
The Parties agree that all arbitration procedures shall be conducted, to minimize discovery and expedite a resolution. Any costs or fees other than attorney fees associated with the arbitration shall initially be shared equally among the Parties.
Any award the arbitrator makes shall be final and binding, and judgment on it may be entered in any court having jurisdiction. This Arbitration provision means that the Parties are giving up their right to sue each other in court, including the right to a trial by jury. Arbitration awards are generally final and binding; a party’s ability to have a court reverse or modify an arbitration award is very limited. Arbitrators do not have to explain the reason(s) for their award unless, in an eligible case, a joint request for an explained decision has been submitted.
ENTIRE AGREEMENT: The Purchase Order between Buyer and Focus, including these terms and conditions, constitutes the entire agreement between the parties with respect to its subject matter, and any prior contemporaneous communications or agreements other than any pre-existing blanket sales agreement are hereby superseded.