Terms & Conditions

These Terms and Conditions form a part of the quotation and/or acceptance of Buyer’s purchase order in connection with which they have been supplied to Buyer, and of any subsequent purchase by Buyer until such time
as revised Terms and Conditions of Quotation and Sale are supplied to Buyer, in which case the latest supplied Terms and Conditions of Quotation and Sale, until later replaced, will apply to all subsequent such purchase
orders.
DEFINITIONS – The word “FMS” as used herein shall mean FABRICATING MACHINERY SALES, Inc. The word “Purchases” as used herein shall mean one or more of the basic Machine, its equipment, accessories, parts and
optional items as are purchased under the “Contract” as hereinafter defined. The word “Machine” as used herein shall mean the basic Machine utilizing equipment and/or accessories and/or parts and/or optional items
purchased under such Contract, or the basic Machine on which the Purchases will be used if such Machine was purchased from FMS or another supplier under a different earlier contract.
PRICES – FMS will endeavor to maintain the prices quoted for any Machine, but cost increases beyond its control, including changes in foreign exchange rates, may necessitate price increases. Prices in effect at the time of
FMS’ oral or written acceptance of Buyer’s oral or written purchase order will prevail and will be firm and binding.
PAYMENT TERMS, LATE CHARGES, CONTINUATION OF CREDIT, AND IN THE EVENT OF DEFAULT PAYMENT TERMS – FMS payment terms are due upon receipt of invoice for non-machinery. Machinery terms are 35% down;
60% before shipment; 5% upon installation (unless otherwise agreed upon in writing by FMS) or within 30 days of shipment, whichever is sooner. An account, which goes out of terms, may be placed on credit hold at FMS’
discretion until the account is brought back within terms and you may void your warranty if account is in arrears. No terms or conditions on customer’s purchase orders or any other documentation, written or verbal,
different from these Terms and Conditions will become part of any sales agreement, purchase order, or other documents unless specifically approved in writing by an authorized FMS representative. No changes to this
application will be accepted. A minimum late payment charge of $25.00 per month plus an 18% finance charge may be applied to each invoice that goes past due and then each month thereafter until paid.
PURCHASE ORDER – The buyer’s purchase order, whether oral or written, shall be an offer to purchase based upon the relevant oral or written quotation made by FMS, and shall be subject in all respects to these Terms
and Conditions of Quotation and Sale. Buyer’s purchase order will become binding upon FMS only when accepted by FMS orally or in writing or by shipping a purchased item. The quotation by FMS is not an offer. The
details of an oral purchase order, the details of any oral acceptance by FMS and the date of shipping shall be conclusively the respective dates thereof solely as shown by the records of FMS or of FMS’ supplier kept in the
ordinary course of business. It will be the responsibility of Buyer to ascertain and understand the capacity rating of a Machine, if any, being ordered at any time and to determine that it will meet Buyer’s requirements and
that Buyer’s use thereof will not exceed any capacity rating of the Machine or of its equipment, accessories, parts and/or optional items.
CANCELLATION – Buyer’s oral or written purchase order shall not be subject to cancellation by Buyer before or after acceptance by FMS except with FMS’ written consent, and then only upon terms and conditions that will
fully indemnify FMS against all losses resulting there from. Cancellation fees may apply.
CONTRACT – The contract between Buyer and FMS (the “Contract”) shall consist of Buyer’s oral or written purchase order and any relevant oral or written quotation made by FMS, the acceptance of the purchase order by
FMS, whether oral or written or by shipping, and these Terms and Conditions of Quotation and Sale. FMS’ records of any oral part of the Contract shall be conclusively evidenced by FMS’ records thereof kept in the
ordinary course of business.
DELIVERIES, LIMITATION OF LIABILITY – FMS shall under no circumstances be responsible or liable for delays, nonperformance, loss or damages, whether direct or consequential, due to any circumstances beyond FMS’
control, in which event FMS shall have the right to revoke it’s acceptance of Buyer’s purchase order, without any responsibility or liability to Buyer whatsoever, whether direct or consequential.
FREIGHT / RIGGING RATES – FMS neither guarantees nor assumes any responsibility or liability for domestic or international freight or rigging rates unless specified in writing by an authorized FMS agent.
RISKS – Purchases will travel totally at Buyer’s risk, and the Buyer hereby assumes all risks of loss, injury or destruction occurring after the time of shipment of the Purchases to Buyer by FMS or the manufacturer. No such
loss, injury or destruction shall operate in any manner to release the Buyer from the obligation to pay for the shipped Purchases. In the event of damage or loss in transit, FMS will, if feasible, assist Buyer in asserting
Buyer’s claim against the carrier or insurer.
TITLE – Title and ownership of all Purchases shall remain with FMS after receipt thereof by Buyer until payment therefore has been made in full. After receipt thereof by Buyer, all of such Purchases shall be and shall remain
personal property and shall retain their character as such even if they are installed on permanent foundations or in any other manner affixed or attached directly or indirectly to realty, and without regard to the purposes
for which they may be used. The rights of FMS to possession of such Purchases until the purchase price therefore shall have been paid in full shall be superior to any rights of the Buyer to possession thereof. If Buyer shall
fail to make any payment when due under the Contract, FMS shall be entitled to all remedies available under the Uniform Commercial Code in force in the State of South Carolina on the date of the Contract, including the
right to repossess the Purchases by self-help and without resort to judicial process. The Buyer may also be required to pay interest at the maximum legal rate on all overdue charges.
INSPECTIONS AND CLAIMS – The Buyer shall inspect all Purchases immediately upon their arrival at the destination specified in the Contract and shall, within five (5) days thereafter, give written notice to FMS of any claims
that the Purchases do not conform to the requirements of the Contract. If no such notice is given within such five (5) day period of time, the Purchases shall conclusively be deemed to conform in all respects to the
requirements of the Contract. All claims made within said five (5) day period of time will, if justified, be satisfied by FMS or the manufacturer in accordance with the LIMITED WARRANTY set forth below.
RETURNS – FMS will not accept any return of Purchases unless (a) FMS shall have authorized each such return and (b) Buyer shall have prepaid all freight charges thereon to FMS or other designated consignee. Any
conditions specified by FMS in FMS’ authorization of any return of Purchases shall bind the Buyer making the return. Upon acceptance of the return, an RMA must be issued and FMS and/or Manufacturer restocking fees
may apply.
SAFETY RESPONSIBILITY – It is the Buyer’s and operator’s joint and several responsibilities to use all Machines and Purchases only with proper safety devices and equipment and proper operating procedures to safeguard
the operator from injury at all times and on a continuing basis during any set-up, use or operation of the Machines and Purchases. It is the Buyer’s responsibility to train all operators in proper and safe operation and usage
of the Machines and Purchases. It is the Buyer’s and operator’s further joint and several responsibilities to assure that such set-ups, uses and operations are not beyond the rated capacities of the Machine and Purchases
and are not on materials for which the Machine and Purchases were not designed. It is the Buyer’s and operator’s joint and several responsibilities to set-up, use and operate the Machine and Purchases in conformity with
all Federal, State and local government safety standards and all industry safety standards. FMS will not be responsible for, and Buyer and operator will indemnify and exonerate FMS from, expenses of defense and any and
all claims and judgments resulting from non-compliance with any provisions of this paragraph.
ELECTRIC CODE, ELECTRIC POWER SUPPLY, OPERATION AND MAINTENANCE – INDEMNIFICATION – Compliance with applicable electric code, provision of the proper power supply and related controls, proper operation and
proper maintenance of the Machine and Purchases are the responsibility of the Buyer. FMS will not be responsible for, and Buyer will indemnify and exonerate FMS from expenses of defense and any and all claims and
judgments for non-compliance with the applicable electric code, non-operation or faulty operation of the Machine and Purchases into (onto) which the Purchases were placed and personal injury, loss or damages, whether
direct or consequential, in any degree resulting from, or contributed to by, inadequate or deficient or excessive or inappropriate electrical power supply for the operation of the Machine, wherever located, inadequate or
incorrect instruction of operating personnel in the use of the Machine in (on) which the Purchases were installed and improper or incompetent operation thereof including overloading, abuse thereof, improper or
inadequate maintenance thereof, use of the Machine for purposes or on materials for which it is not intended according to its specifications or to generally accepted trade standards, or alteration or modification of any
kind to such Machine in (on) which the Purchases are installed unless previously and specifically approved in writing by FMS. As used herein, expenses of defense shall include all reasonable defense expenses and costs
including (but not limited to) counsel fees incurred by FMS. Improper or incompetent operation as referred to above shall include, but not be limited to, failure to follow manufacturer instructions, generally accepted trade
practices, warnings and recommendations and failure to comply with applicable Federal, State and local laws and regulations. Said indemnification and exoneration against claims and judgments shall include, but not be
limited to, those resulting from any legal theory of strict liability and from any theory or breach of warranty of any kind. In addition, as used above, the terms “improper and inadequate” maintenance of the Machine in
(on) which any such Purchases are installed shall include, but not be limited to, improper or inadequate installation of Purchases purchased under these Terms and Conditions of Quotation and Sale.
LIMITED WARRANTY AND REMEDIES – The Manufacturer warrants each Machine made by it and purchased from FMS if the machine is used on an eight-hour-per-day basis, is given normal and proper usage and
maintenance, is owned by the original Buyer, is operated by the original user and is properly operated. Repair, alteration or modification of any kind to the Machine or any other Purchases without FMS’ previous and
specific approval in writing, or without being performed by FMS’ personnel, absolutely and irrevocably voids this LIMITED WARRANTY. Cutting tools and dies and other expendable items and tooling are not warranted. The
parties agree that no other remedy (including, but not limited to, incidental or consequential damages for lost profits or revenues, damage to or loss of other property, cost of capital, claims of customers, cost of a
replacement machine, its equipment, appurtenances, accessories, and optional items, damage to or loss of materials processed by the machine, lost sales, injury to persons or property, or any other incidental or
consequential damage or loss) shall be available to Buyer or operator. The sales personnel of FMS are not authorized to make warranties about Machines or other Purchases from FMS. FMS’ employees’ oral statements do
not constitute warranties, shall not be relied upon by the Buyer or operator, and are not part of any quotation or Contract. NO OTHER WARRANTIES are given beyond those set forth herein. Under no circumstances shall
the liability of FMS exceed the price of the purchased items upon which such liability is based. The time within which Buyer or operator may bring any action against FMS under this LIMITED WARRANTY shall be limited to
one hundred and twenty days (120) following the date of sale thereof.
TAXES – All applicable sales, use and other Federal, State and local taxes and filing fees are to be paid by Buyer, or, if paid by FMS, may be added to invoices for the Purchases or invoiced separately, and Buyer shall be
obligated to pay same in accordance with invoice payment terms.
SERVICE POLICY – “Service” shall include all work, demonstrations, installation, start-up, instructions in the use of Machine, and maintenance and repairs of the Machine. Should any Service be requested of FMS beyond
that which the Contract specifies that FMS will supply at its expense, such Service will be rendered at the then current per diem charge (plus overtime, if applicable) for the persons rendering the Service, plus their
transportation and reasonable living expenses. Buyer shall, at Buyer’s expense, supply appropriate rigging equipment and/or material handling equipment, tools and supplies (including demonstration material) so that any
and all such Service can be provided efficiently and safely.
SPECIFICATIONS – Specifications set forth in the quotation for any machine are subject to change without notice prior to FMS’ acceptance of Buyer’s purchase order.
F.O.B. POINT – The f.o.b. point stated in the quotation or in Buyer’s purchase order as accepted by FMS may be changed by FMS if the Purchases are delivered to a port other than that to which originally destined because
of circumstances beyond the control of the carrier or beyond the control of FMS. In such an event, Buyer is required to accept such Purchases f.o.b. such other port and may be required to pay any additional domestic
overland freight charges from that other port to Buyer’s designated destination.
GOVERNING LAW – The Contract shall be governed by and interpreted in accordance with the laws of the State of South Carolina.
ARBITRATION AND SUIT – (1) Any controversy or claim instituted by Buyer and arising out of or relating to the Contract shall be resolved by binding arbitration to take place in Greenville, South Carolina under the auspices
and commercial arbitration rules of the American Arbitration Association, the cost of such arbitration to be divided equally between FMS and Buyer, and judgment upon the award rendered may be entered in any Court
having jurisdiction. (2) Any controversy or claim instituted by FMS and arising out of or relating to the Contract shall, at FMS’ option, be resolved by binding arbitration and with division of the cost of arbitration as
described in clause (1) above or by suit in any Court having jurisdiction. Anything hereinabove to the contrary notwithstanding, if FMS’ claim against the Buyer is for the unpaid balance of the purchase price of the
Purchases or for Buyer’s violation of the provisions hereof, and if such claim is sustained by the arbitrators or by litigation, Buyer shall pay the entire cost of the arbitration or suit together with the counsel fees incurred by
FMS in connection with such arbitration or suit including the cost of collection of the judgment or award, all of which shall be made a part of such judgment or award. If FMS shall successfully defend any controversy or
claim instituted by Buyer (whether as an original action or as a counterclaim or cross action or otherwise), Buyer shall pay the counsel fees incurred by FMS in defending against such controversy or claim.
CAPTIONS AND GENDER – The captions and headings hereof are for identification and convenience only and shall be disregarded in any interpretation of the provisions hereof. Use of masculine gender here in shall be
construed where appropriate to include the feminine and neuter genders. Additionally, use herein of the singular shall include the plural and use herein of the plural shall include the singular.
SALES OR DELIVERIES TO ENTITY DESIGNATED BY BUYER – If Buyer shall at any time designate or permit any entity other than Buyer for purchase and/or delivery and/or use of the Purchases described in the Contract,
Buyer and the entity or entities designated or permitted by Buyer for such Purchases and/or delivery and/or use of the Purchases shall be jointly and severally liable for the payment of the purchase price of the Purchases
and shall be bound by these Terms and Conditions of Quotation and Sale. Buyer shall be responsible for delivering a copy of these Terms and Conditions of Quotation and Sale to each such entity. As used herein, the term
“Buyer” shall include (but not be limited to) the individual or individuals and/or the business entity or entities requesting the price quotation whether or not such Buyer designates or permits another entity or entities for
the Purchases and/or delivery and/or use of such Purchases and whether or not such entity or entities shall pay all or any part of the purchase price of the Purchases. Buyer and the purchasers and the consignee or user of
the Purchases described in the Contract will be jointly and severally liable for the purchase price thereof, and Buyer, purchaser, consignee and user of such Purchases will be deemed to have agreed to require such
purchaser, consignor or user of such Purchases to agree with FMS to be bound by these Terms and Conditions of Quotation and Sale as they pertain to the purchase of such Purchases and use or operation of the Machine
containing (using) any such Purchases, and upon request will supply to FMS a copy of such agreement signed by such purchaser, consignor and/or user of such Purchases.
AUTHORITY TO FMS FROM BUYER – Buyer hereby grants a security interest to FMS in Buyer’s Purchases from the date that Buyer enters into the Contract for buying such Purchases until Buyer shall have made payment in
full for Buyer’s Purchases, and hereby authorizes and empowers FMS to record a Financing Statement “UCC-1” with the appropriate authority naming Buyer as the Debtor and FMS as the Secured Party. Buyer hereby
authorizes FMS to execute Buyer’s name to any and all documents evidencing the security interest. This authority is a power coupled with an interest and is not revocable. 01/2021

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