Terms & Conditions
1. GENERAL: Goods supplied by Form3 Dynamics LLC (“Form3 Dynamics”) are supplied upon the following Terms and Conditions of Sale (these “Terms and Conditions”), and not otherwise. Form3 Dynamics expressly rejects any conditional sales order placed by the purchaser (“Customer”).
CUSTOMER UNDERSTANDS AND AGREES THAT, NOTWITHSTANDING THE FACT THAT CUSTOMER MAY NOT EXECUTE THESE TERMS AND CONDITIONS, Form3 Dynamics SHALL PROVIDE THE GOODS IN RELIANCE ON THE PROVISIONS OF THESE TERMS AND CONDITIONS, UNMODIFIED BY ANY ORAL OR WRITTEN STATEMENTS BY CUSTOMER OR BY ANY TERMS CONTAINED IN A PURCHASE ORDER OR OTHER WRITING. ALL ORDERS PLACED WITH Form3 Dynamics CONSTITUTE THE ACKNOWLEDGEMENT AND ACCEPTANCE OF ALL TERMS AND CONDITIONS STATED HEREIN.
2. PURCHASE ORDERS: A Purchase Order shall be deemed an offer by Customer to purchase the Goods, which offer shall and hereby does automatically include these Terms and Conditions in their entirety. Form3 Dynamics may accept such offer by either dispatching the Goods to Customer or by giving written notice to Customer of its intent to accept such offer (order confirmation).
CUSTOMER UNDERSTANDS AND AGREES THAT ANY AND ALL TERMS AND CONDITIONS THAT MAY BE SET FORTH IN A CUSTOMER PURCHASE ORDER (AND ALL OTHER DOCUMENTS SUBMITTED BY CUSTOMER TO Form3 Dynamics IN CONNECTION THEREWITH) THAT ARE NOT CONSISTENT WITH THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE VOID AND OF NO EFFECT WHATSOEVER. AS SUCH, Form3 Dynamics SHALL NOT BE DEEMED TO HAVE ACCEPTED ANY TERMS AND CONDITIONS IN A CUSTOMER PURCHASE ORDER THAT ARE INCONSISTENT WITH THESE TERMS AND CONDITIONS.
3. ACCEPTANCE/RETURN: All orders for Goods shall be subject to acceptance by Form3 Dynamics as directed by Form3 Dynamics. Customer shall not return Goods actually delivered to Customer without the consent of, and upon terms agreed to, by Form3 Dynamics. Form3 Dynamics may, in its absolute discretion, accept the return of standard Goods to the credit of the Customer provided that such Goods are returned to its factory unused and undamaged before the expiration of 7 days after their delivery to Customer and Customer agrees to pay full freight costs and 20% of sale price as a return fee. No returns of special custom products will be accepted.
4. CLAIMS: No claims in reference to items covered by these Terms and Conditions will be recognized unless made in writing within 7 days of delivery. If no such claim is made by that date, the Goods shall be deemed as accepted by Customer. By accepting the Goods, Customer acknowledges that Form3 Dynamics’s performance has fully satisfied all terms, conditions, and specifications of the subject order.
5. PRICE: The price is that price quoted by Form3 Dynamics in respect of the particular order and not in any brochure or other product information published. Prices do not include sales, use, excise, or similar taxes. Consequently, the amount of any present or future sales, use or similar tax applicable to the sale or use of the Goods shall be paid by Customer. The Customer shall arrange or bear the cost of delivery, freight, and insurance unless otherwise agreed to in writing by Form3 Dynamics. A price quotation not accepted by Customer within 30 days may be changed by Form3 Dynamics.
6. PAYMENT/DELINQUENCY CHARGE: Payment terms are net thirty (30) days from the date of Form3 Dynamics’s invoice. Form3 Dynamics reserves the right to charge interest at one and 1.5% per month, or 18% per annum, on all balances not paid by Customer within the designated net terms. Form3 Dynamics reserves the right to require payment prior to the time of shipment if, in Form3 Dynamics’s opinion, exercised in Form3 Dynamics’s subjective judgment, Customer’s financial condition has deteriorated, or the risk of non-payment has otherwise increased. Should Customer cancel an order placed with and accepted by Form3 Dynamics prior to completion and delivery, Customer shall pay Form3 Dynamics for all work performed by Form3 Dynamics up to the point of cancellation including all material costs incurred and lost profits.
7. DELIVERY AND FREIGHT CHARGES: All delivery dates are approximate only and based upon prompt receipt of all necessary information from Customer. Notwithstanding any request by Customer, Form3 Dynamics shall ship Goods to Customer via transportation as determined by Form3 Dynamics and will be observed subject to Form3 Dynamics’s ability to affect transport by available means. Cost of loss shall pass to Customer at the F.O.B. point. Form3 Dynamics will not be responsible or liable for any loss or damage whatsoever, including loss of income and/or profits, incidental, special or consequential damages, resulting from any delay in or failure of performance of supply or delivery of Goods whatsoever.
8. LIMITED WARRANTY/DAMAGES: Form3 Dynamics warrants that Goods sold hereunder shall be free from defects in material and workmanship at the time of shipment from Form3 Dynamics’s facility or other place of shipment. THIS LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY Form3 Dynamics AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE CREATED UNDER APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN NO EVENT SHALL Form3 Dynamics BE LIABLE (AND CUSTOMER SHALL NOT ASSERT ANY CLAIM) FOR SPECIAL, INCIDENTAL, COMPENSATORY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS. CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES UNDER THIS WARRANTY SHALL BE LIMITED AT Form3 Dynamics’s EXCLUSIVE DISCRETION, TO: (1) REPLACEMENT OF ANY DEFECTIVE GOODS OR PART THEREOF: (2) REPAIR OF ANY DEFECTIVE GOODS OR PART THEREOF: OR (3) RETURN OF THE PURCHASE PRICE FOR ANY DEFECTIVE GOODS OR PART THEREOF: IN NO EVENT SHALL CUSTOMER SEEK OR RECOVER PUNITIVE OR EXEMPLARY DAMAGES. The warranty and remedy set forth above are conditioned upon the proper at all times dry storage, use and maintenance of the Goods and conformance with all applicable recommendations of Form3 Dynamics with respect to the Goods. No agent, employee or representative of Form3 Dynamics (or any distributor, dealer or sales representative of Form3 Dynamics) has the authority to bind Form3 Dynamics to any affirmation, representation or warranty concerning the Goods sold hereunder, and unless such affirmation, representation or warranty is specifically included in these Terms and Conditions, it shall not form a part of the basis of these Terms and Conditions and shall in no way be binding upon Form3 Dynamics or enforceable by Customer. Except as expressly agreed to by Form3 Dynamics in writing, the Goods are not rated or certified for any particular application or environment. It is the responsibility of the Customer to deem the product fit for the applicable required use. Form3 Dynamics will not be responsible for misuse of their products.
9. INDEMNITY: Except as otherwise expressly set forth in these Terms and Conditions, Customer hereby releases and agrees to defend, indemnify and hold Form3 Dynamics, and its respective officers, employees and agents, harmless from and against any and all claims, losses, liabilities, damages or expenses whatsoever, including any arising from any alleged injury to person, property or business, arising from or in any way relating, directly or indirectly, to the delivery, assembly, erection, installation, use or repair of the Goods and/or any related or other claims or losses, whether or not caused by Customer and/or its agents or employees or any of their acts, omissions or negligence.
10. COMPLIANCE WITH LAWS AND STANDARDS, AND SAFETY PRECAUTIONS: Customer shall comply with and be responsible for all federal, state, and local laws, regulations and ordinances and all industry standards which are or may hereafter be in effect from time to time with respect to selection, installation and/or use of the Goods. Customer shall exercise suitable safety precautions and shall require employees to follow all installation and use procedures and recommendations as may be published by Form3 Dynamics, including preventing injury or damage to person or property. It is Customer’s responsibility to provide all the means that may be necessary to effectively protect all employees and other persons from serious bodily injury which otherwise may result from the method of installation or use of the Goods. If Customer fails to comply with the provisions of this paragraph or the applicable standards or regulations aforementioned, Customer shall indemnify and save Form3 Dynamics, and its respective employees and agents, harmless from and against all claims, losses or damages arising therefrom.
11. RETENTION OF TITLE: All Goods are supplied subject to retention of title of Form3 Dynamics. The Goods remain the property of Form3 Dynamics until complete payment of all amounts due to Form3 Dynamics arising from all business transactions between Form3 Dynamics and the Customer. Prior to use or resale of the Goods, the Customer shall maintain them in an identifiable condition in storage or on site. The Customer may resell the goods in the ordinary course of business, subject to maintaining Form3 Dynamics’s rights against the Goods, and acting as fiduciary in recovering full payment for the Goods and segregating such proceeds for the account of Form3 Dynamics until Form3 Dynamics is paid in full. The Customer assigns to Form3 Dynamics any claim or rights against sub-purchasers in order to enable Form3 Dynamics to make full recovery of monies owed. In the event of the failure of Customer to pay for the Goods or in the event of the appointment of a receiver, trustee, assignee for benefit of creditors, liquidator, or other agent in possession or in the event of the filing of an execution against the Goods, Form3 Dynamics may enter the Customer’s premises or the location where the Goods may be stored or installed and recover them or appoint an agent in writing to do so. The Customer acknowledges and guarantees such right of entry during normal business hours. The Customer hereby irrevocably grants in favor of Form3 Dynamics an irrevocable license to attend at and access any premises at which any of the Goods supplied by Form3 Dynamics are located for the purposes of retrieval of the same in the event of default in payment by the Customer for such Goods.
12. FAILURE BY CUSTOMER: If Customer fails to perform any of its obligations under these Terms and Conditions, or in the event of death, bankruptcy or insolvency of Customer, dissolution or modification of Customer, or non-payment for the goods shipped, Form3 Dynamics shall have the right to cancel this contract with Customer or to postpone the shipment, or to stop the goods in transit, and Customer shall reimburse Form3 Dynamics for any loss, damage and expense sustained therefrom.
13. FORCE MAJEURE: Form3 Dynamics’s obligations hereunder are subject to, and Form3 Dynamics shall not be held responsible for, and delay or failure to make delivery of all or any part of the Goods due to acts or circumstances beyond the control of Form3 Dynamics, including, but not limited to, labor difficulties, fires, casualties, accidents, acts of God, acts of war or terror, transportation difficulties, inability to obtain products, materials or components or qualified labor sufficient to timely perform part of all of any obligation or governmental regulations or actions. In the event of the occurrence of any of the foregoing at the option of Form3 Dynamics, Form3 Dynamics shall be excused from the performance hereunder of the performance of the Form3 Dynamics shall be correspondingly extended.
14. NO WAIVER: Form3 Dynamics does not waive any of its legal rights or remedies in respect of these Terms and Conditions or the Goods and shall not be liable for any purported waiver made by its employees or agents on a particular occasion. Any failure by Form3 Dynamics to enforce at any time any term or condition hereof shall not be considered a waiver of Form3 Dynamics’s right thereafter to enforce the same or any other term or condition hereof.
15. GOVERNING LAW: This agreement and any sale of Goods to Customer shall be deemed to have been made in and governed by the substantive laws of the State of New York, without regard to choice-of-law provisions. Any dispute concerning the Goods of the terms of their purchase and sale may only be litigated in the courts in Monroe County, New York, and Customer expressly consents and submits to the jurisdiction of said courts.
16. EFFECT OF OTHER AGREEMENTS: These Terms and Conditions, and the Form3 Dynamics quotation or purchase order to which they are attached or referenced, constitute the entire agreement between Form3 Dynamics and Customer’s purchase and sale of Goods from Form3 Dynamics, and Form3 Dynamics’s liability therefor, and supersede any and all prior or contemporaneous written or oral agreements, correspondence, quotations, understandings, negotiations or discussions between the parties relating to the subject matter hereof. It is expressly agreed that any brochures, sales literature, online materials or other materials of Form3 Dynamics, have been provided for informational purposes only, have not been relied upon by Customer, do not form or give rise to any warranty, and are superseded by these Terms and Conditions.
17. SEVERABILITY: If any term or condition or part of these Terms and Conditions is held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the remaining terms and conditions hereof shall not be affected thereby, and the effect thereof shall be confirmed to the provisions as to which such adjudication is made.
18. BINDING EFFECT: These Terms and Conditions shall be binding upon the successors, legal representative, and permitted assigns of Customer and Form3 Dynamics.
19. ATTORNEY’S FEES: Reasonable attorney’s fee and costs shall be awarded to Form3 Dynamics if it is the prevailing party in any legal proceedings to recover amounts due for Goods sold to Customer, or in any legal proceedings involving the enforcement or interpretation of these Terms and Conditions.
20. MODIFICATION: These Terms and Conditions may not be modified, canceled, or assigned unless Form3 Dynamics agrees in writing.
21. SURVIVAL: All terms herein which by their nature should survive any purported termination hereof shall so survive including, but not necessarily limited to, Sections 8-21.