Terms of Sale and Delivery
BELOW ARE THE GENERAL TERMS OF SALE DELIVERY WHEN PURCHASING FREMCO PRODUCTS FROM FREMCO INC.
VALID FROM JANUARY 1, 2023
These Terms of Sale and Delivery (the “Terms of Sale”) apply to all offers, orders, order confirmations and deliveries of products/machines (the “Products”) from Fremco Fiber Blowing Machines Inc., a Delaware corporation (“Fremco”), to buyer (“Buyer”). These Terms of Sale do not apply to agreements where Fremco delivers a service. These Terms of Sale are mutually binding on Fremco and Buyer, unless otherwise is expressly agreed. Fremco is not bound by any terms set forth by Buyer that differ from these Terms of Sale unless such conditions are agreed to in writing signed by an authorized representatives of both Fremco and Buyer. Failure of Fremco to object to conditions contained in any other writing or other communication from Buyer shall not be construed as a waiver of these Terms of Sale nor acceptance of any such other provisions. These Terms of Sale also serve as notice of Fremco’s objection to and express rejection of any terms and conditions of purchase included in Buyer’s order or other writing that are different from or additional to these Terms of Sale. None of any past practice, industry standards, course-of-dealing or usage of trade shall constitute a modification of any term or condition contained herein, nor shall same add any term not contained herein.
If Fremco makes an offer that does not include a specific deadline, the offer will lapse after 30 days from the date thereof. Until Fremco receives Buyer’s acceptance and there is an order confirmation issued by Fremco, Fremco is entitled to enter into agreements with third parties relating to the offered Products with the effect that the offer to purchase will expire without further notice.
All prices are in U.S. dollars unless otherwise stated in writing. Buyer is required until delivery to accept price changes because of documented increased costs for Fremco due to changes in exchange rates, tariffs, taxes, duties, etc. related to the delivery. The quoted price of the Product does not include duty, tariffs, taxes, freight costs, or similar charges, which shall be borne by Buyer, unless otherwise agreed upon in writing. Further, quoted price does not include sales, excise, use or other taxes now in effect or hereafter levied by reason of this transaction. Buyer will pay and indemnify and hold Fremco harmless from all such taxes. Such indemnification with survive the expiration or termination of these Terms of Sale. All prices are subject to change prior to Fremco’s issuance of an order confirmation. For orders under $100.00, Fremco charges a handling fee of $20.00.
Payment must be made no later than on the final payment date stated in the invoice. If delivery is postponed due to Buyer, Buyer still required to pay any due and owing amount to Fremco, as if delivery had been made on time, unless otherwise agreed in writing by Fremco. Overdue amounts shall bear a delinquency charge of interest at the lower of (a) eight percent (8%) per annum; or (b) the maximum rate permitted by applicable law. Buyer is not entitled to set off any counterclaims against Fremco not acknowledged in writing by Fremco and has no right to withhold any portion of the purchase price because of counterclaims of any kind.
5. SECURITY INTEREST
Fremco reserves a purchase money security interest in the Products in the amount of the purchase price of such Products to secure Buyer's obligations hereunder. Buyer appoints Fremco as its agent and attorney-in-fact to file any financing statements under the Uniform Commercial Code and any appropriate amendments thereto on Buyer's behalf which Fremco deems necessary to protect Fremco's interest in the Products.
The products are delivered Ex Works (Incoterms 2010) from Fremco’s address or from any other of Fremco informed place. Fremco chooses mode of transportation, unless otherwise agreed with Buyer. Transport is Buyer’s risk and expense. It is Buyer’s sole responsibility to pay for and to obtain any governmental or other licenses, certificates or documentation as may be required.
If Fremco does not deliver at the agreed time, Buyer can in writing demand delivery within a final reasonable period. If delivery is not made within that period, Buyer’s sole remedy shall be the cancellation of the purchase of the subject Products. Such right of cancellation shall be Seller's sole obligation and Buyer's sole remedy hereunder.
Disposable packaging is included in the agreed prices, unless otherwise stated in the quotation and/or order confirmation. Disposable packaging will not be credited if returned. If a Product has to be returned to Fremco for service or repair, the machine must be packed and shipped in its original packaging. If the Product is shipped to Fremco and it is not in original packaging, then Fremco will return the Product in a new original packaging at the customer’s or receiver’s expense.
9. PRODUCT INFORMATION
Any Product information - whether it comes from Fremco or one of Fremco’s resellers - including information on weight, dimensions, capacity or other technical data in the catalog description, prospectus, advertisement, etc., is considered to be illustrative and is only binding to the extent, Fremco explicitly refers to such Product information in the quotation and/or order confirmation. Specific requirements from Buyer are binding only to the extent that Fremco confirms them in writing.
10. PROPRIETARY INFORMATION AND CONFIDENTIALITY
Any information that is not publicly available, including drawings and technical documents handed over by Fremco to Buyer shall remain Fremco property at all times and must be treated as such by Buyer. Confidential information shall not be copied, reproduced, transferred to third parties, or used for other purposes than intended without Fremco’ written commitment. Buyer is not entitled to manufacturer products or parts that are identical to, similar to or service identical purposes as to the Fremco Product range purchased by Buyer, unless specifically agreed upon with the Fremco in writing.
Fremco reserves the right to make changes in its Products without notice if this is achievable without significantly changing the agreed technical specifications and without substantial changes in the Products’ form or function.
Buyer shall check Products for defects immediately after delivery. Fremco undertakes, at its sole discretion, to either repair or replace Products which prove to be defective due to workmanship, construction or materials, if Buyer notifies Fremco within 12 months from delivery. By prior agreement with Fremco, Buyer shall ship the full Product to Fremco or a Fremco approved entity accompanied by a delivery note specifying in detail the alleged defect. Buyer shall pay for the shipping and insurance on the Product. If Fremco’s investigation documents that the Product is without any defect, the Product will be returned to Buyer, at Buyer’s expense, who shall pay for shipping and insurance. If the investigation documents that the Product has a defect, due to improper use, unauthorized modifications or unauthorized repairs, Buyer cannot make claim against Fremco. If deficiencies are identified, Fremco or a Fremco approved entity will send the repaired Product or a replacement Product to Buyer and retain the replaced parts or the defective Product. Fremco or a Fremco approved entity chooses shipping and pays shipping and insurance. Besides these terms, Buyer cannot make claim against Fremco or a Fremco approved entity because of defective products. Any repairs or alterations of the Product not performed by Fremco or a Fremco approved entity or without Fremco’ written consent will invalidate the limited warranty. Fremco may indicate special conditions of complaint for Products and repairs, which differ from the above. These will appear in the quotation and/or order confirmation.
13. LIMITED WARRANTY
Fremco provides a 12-month limited warranty from the date of delivery of the Product unless a Service Agreement with an extended warranty has been purchased by Buyer. Extended warranty options up to 60 months are available on fiber blowing machines only, excluding wearing parts (detailed list of wearing parts available upon request). Extended warranty and service agreements for the machine must be purchased on Fremco’s homepage within 30 days of the machine purchase. Learn more in the ”General Terms and Conditions for Fremco Service Agreement”. Damage and defects, which have occurred by improper use, unauthorized modifications or unauthorized repairs, are not covered by the limited warranty. If Fremco finds that the Product has undergone unauthorized repair or service or been repaired with non-original spare parts, the limited warranty will be void and no longer valid, regardless if damage or defects do not occur. Moreover, in case of invalidated limited warranty, Fremco will be entitled to retain any service fees prepaid by Buyer and will not be reimbursed to Buyer. All handling of limited warranty claims shall be in accordance with the guidelines issued by Fremco in the “Fremco Warranty Procedure”, which is incorporated into these Terms of Sale by this reference. Machines used for rental, leasing or other financial solutions are only eligible for the standard 12-month limited warranty.
THE LIMITED WARRANTY EXPRESSED HEREIN SHALL BE IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WHICH ARE EXPRESSLY DISCLAIMED, AND IS IN LIEU OF ANY AND ALL OTHER OBLIGATIONS OR LIABILITY ON FREMCO’S PART.
14. FORCE MAJEURE
Fremco is entitled to cancel the order or suspend delivery of Products and is free of responsibility for any missing, incomplete or late delivery in whole or in part due to circumstances beyond Fremco’s reasonable control. Such as riots, civil commotion, war, terrorism, fire, government regulations, strikes, lockouts, slowdown, lack of transport, shortages, disease, pandemics or delay in or failure of the deliveries from suppliers, accidents in product testing, or lack of energy supply and also any other happenings out of Fremco’s control. All of Buyer’s rights are suspended or terminated in such cases. Neither in case of cancellation nor delayed delivery, can Buyer claim damages or make any claim against Fremco.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY PROVISION IN THESE TERMS OF SALE OR ELSEWHERE TO THE CONTRARY, EXCEPT FOR DAMAGES FOR BODILY INJURY (INCLUDING DEATH), DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY, AND THE INDEMNIFICATION OBLIGATIONS UNDER THESE TERMS AND CONDITIONS: (a) IN ANY ACTION UNDER OR RELATED TO THESE TERMS OF SALE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, NEITHER PARTY, OR ITS AFFILIATE, SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY OF THE FOLLOWING EVEN IF INFORMED OF THEIR POSSIBILITY AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE: (i) THIRD PARTY CLAIMS FOR DAMAGES; (ii) LOSS OF, OR DAMAGE TO, DATA; (iii) SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES; OR (iv) LOSS OF PROFITS, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS; AND (b) THE MAXIMUM CUMULATIVE LIABILITY OF EITHER PARTY AND ITS AFFILIATES TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL ACTIONS ARISING OUT OF OR RELATED TO THESE TERMS OF SALE, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, SHALL IN NO CASE EXCEED THE TOTAL PRICE PAID BY BUYER FOR THE PRODUCTS SOLD BY FREMCO WHICH GIVES RISE TO THE CLAIM. If applicable, Buyer agrees to cause its customers and anybody in the chain of manufacturing supply and distribution including the end customer to be bound by limitations of liability substantially equal to those contained in these Terms of Sale.
16. GOVERNING LAW AND JURISTICTION
The parties agree that these Terms of Sales, any sales hereunder, or any claim, dispute or controversy between Fremco and Buyer arising from or relating to these Terms of Sale, their interpretation, or the breach, termination or validity thereof, the relationships which result from these Terms of Sale or any related sale shall be governed by the laws of the State of Georgia, without regard to its conflicts of law principles.
Any legal suit, action or proceeding arising out of or based upon any agreement concluded pursuant to these Terms of Sale or any of the transactions contemplated hereby or thereby, must be instituted in the federal or state courts located in DeKalb County, Georgia. Each party submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each party waives any defense of inconvenient forum to the maintenance of any suit, action or proceeding so brought. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER ANY AGREEMENT CONCLUDED PURSUANT TO THESE TERMS OF SALE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS OF SALE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
17. TRADE LAW AND REGULATIONS
Buyer represents, warrants and covenants that:
(a) Buyer, together with its affiliates and their respective representatives, shall comply with all applicable laws and regulations, including but not limited to anti-bribery laws, anti-money laundering laws, trade and economic sanctions laws, and export control laws (including any involvement or business dealings, directly or indirectly, with a restricted or listed person or entity under such legislation);
(b) Buyer will immediately inform Fremco of any suspected or alleged breach of the foregoing.
Following any reasonably suspected breach of (a) - (b) above, Fremco has the discretionary right to refuse further performance or terminate any relevant agreement it has with Buyer. Buyer undertakes to indemnify and hold harmless Fremco its officers, directors, employees, agents and insurers of each of them, from and against any and all third-party claims, demands, actions, damages, expenses, costs, claims, judgments and liabilities (including, without limitation, interest, penalties and reasonable attorneys’ fees) incurred by Fremco for any breach of this Section. This Section shall survive the expiration or termination of these Terms of Sale and the transactions contemplated hereby.
VALID FROM JANUARY 1, 2023
1. EXTENDED LIMITED WARRANTY AND SERVICE AGREEMENT
As standard procedure, all Fremco fiber blowing machines have a 12-month limited warranty unless a Service Agreement with Extended Warranty has been purchased by Buyer. Extended warranty and service agreements for the machine must be purchased on Fremco’s homepage within 30 days of the machine purchase. Failing to do so means a 12-month limited warranty only has been granted for the specific machine.
2. DEMO MACHINES
For all demo machines, the limited warranty period starts instantly from Fremco’s invoice date. The remaining limited warranty period will be transferred to an end customer once the demo machine has been sold by the reseller.
3. OTHER PRODUCTS
Fremco accessories and complementary products have a 12-month limited warranty only.
4. REQUESTED STOCK
For requested stock machines at Fremco reseller stock, the warranty period starts on the reseller invoicing date to the end customer. We grant a maximum of 12- months, after the reseller has purchased the machines from Fremco, as “stock warranty period”. This means in total a maximum of 24-month warranty (up to 12 months in reseller stock unused/new condition) unless a Service Agreement with Extended Warranty has been purchased.
5. LIMITED WARRANTY COMPLAINT
In case of a limited warranty complaint, the reseller shall send a written complaint to Fremco. The written complaint should contain a detailed description of the issue along with videos and photos of the defect and Product. A customer complaint form can be found on Fremco’s webpage.
6. INSPECTION AND REPAIR
Fremco can require the return of the Product for inspection and repair. If the subject Product needs to be returned for service or repair, it is important that the Product is packed and shipped in its original packaging. If a Product is sent to Fremco that is not in original packaging, we will return it in a new original packaging at the the customer’s / receiver’s.
Fremco will use commercially reasonable efforts to consider the written complaint and reply to the reseller within 5 business days from the date of receipt of the written complaint. Fremco can request the reseller representative to go to the end customer location and inspect the defective Product. According to the results of the inspection, a written mutual agreement will be entered into evidence a sensible settlement of the complaint.
Fremco will use commercially reasonable efforts to correct any defects at Fremco’s expense or to replace the defective Product or parts within a maximum of 20 business days from reception of the Product.
9. FREMCO CHECK LIST
The reseller and the end customer are requested to perform a local check according to the official seller check list before making an official complaint toward Fremco. The check list can be obtained from Fremco by request or by login through Fremco’s webpage.
10. SERVICE AND MAINTENANCE REQUIREMENTS
To maintain the limited warranty coverage, the Product is required to be serviced annually. The end customer must ensure that the service and maintenance requirements for each Product comply with the description in the operating manual. Failure to maintain and clean the Product may result in lack of performance and reliability and invalidation of the limited warranty.
11. AUTHORISED SERVICE
Service and maintenance is only valid if performed by approved Fremco service center or at Fremco.
12. FREIGHT COST
Freight costs from the distributor’s location to Fremco is at distributor’s expense. If the Product is covered by the limited warranty, return costs will be at Fremco’s expense.
13. LAPSE OF LIMITED WARRANTY
In the case where a Product is sent to Fremco as a limited warranty claim, and it is determined not to be covered under the limited warranty, Fremco is entitled to invoice the reseller for any costs related to the inspection, parts and/or shipping. This also applies if the distributor decides to have the Product returned without being repaired or if no defect is found.
14. LIMITED WARRANTY DOES NOT APPLY TO
- Standard wearing parts (g. chains, chain support rails, adaptor sets, gaskets, sealing’s etc.);
- Defects resulting from careless or improper storage or the use of substandard and unsuitable materials;
- When using non-original spare parts;
- Independent design change;
- Use of incorrect supporting equipment like compressors, electrical power pack or hydraulic power packs. Must be used together with recommended equipment;
- Poor or negligent maintenance of the Product; or
- If the operating manual is not followed.