Company: Throughout the entirety of these Terms and Conditions, the term “COMPANY” shall be understood as Fincite Group LLC and/or FCG Matting as identified on the associated quotation.
Customer: Throughout the entirety of these Terms and Conditions, the term “Customer” shall be understood to refer to the company receiving (purchasing) and/or approving the terms and conditions of the quotation.
Quote Expiration: All job-specific quotations affiliated with this agreement shall remain valid for a period of SEVEN (7) days following the date of the quotation unless significant supply chain cost increases occur which may affect pricing. All pricing is subject to change. All material is subject to prior sale.
Agreement: The Quotation, Terms & Conditions, and any Attachments, hereto represent the entire agreement between COMPANY and the Customer with respect to the purchase, lease or rental of the Mats and the execution of services, and supersedes any prior oral or written agreements or discussions; may not be modified or amended unless in writing and signed by each of the parties; and may not be assigned by either party without the written consent of the other party, which consent will not be unreasonably withheld.
Notices: If either party is required or permitted to send the other party any notices, such notices shall be in writing and sent to the other party at its last business address by (i) electronic mail or facsimile, (ii) registered or certified mail, postage prepaid, return receipt requested, or (iii) by private overnight delivery service. Notices shall be effective upon receipt.
Indemnification: Except to the extent of any willful misconduct, negligent act or omission by COMPANY, the Customer shall indemnify and hold COMPANY harmless from: any claim, proceeding, judgment or order (judicial or administrative), lien, security interest, liability, loss, or damage, cost, expense (including reasonable attorneys’ fees), penalty or fine, or forfeiture or seizure (collectively, “Damages”) that COMPANY may sustain or be subjected to, to the extent, directly or indirectly caused by: (a) any damage to or loss of the Mats while in the customers possession due to any cause, including, without limitation, collision, fire, lighting, theft, explosion, flood, windstorm or Act of God; (b) any injury to or death of any third party, or any damage to the property of any third party as a result of the Customer use or condition of the Mats; (c) from the failure, actual or alleged, of the Customer to properly use or maintain the Mats as provided under this Agreement and in compliance with any applicable laws; and (d) any negligent act or omission of the Customer, its employees, agents, representatives or subcontractors.
The Customer shall indemnify and hold the Company harmless from any Damages (as defined above) that the Customer may sustain or be subjected to as a result of, directly or indirectly, any negligent act or omission of COMPANY, its employees, agents, representatives, or subcontractors.
Liability: In no event will either party be liable to the other party or its affiliates (if any) for special, indirect, incidental, or consequential damages (including but not limited to lost profits, damage to goodwill, or loss of business), whether based on the use or possession of the Mats. The foregoing limitation shall not apply to claims by third parties for personal injury or property damage.
Failure to Perform: Either party’s failure to perform its obligations hereunder (except to make payments hereunder) shall be excused to the extent and for the period of time such nonperformance is caused by an event of force majeure, including but not limited to war, invasion, fire, explosion, flood, riot, strikes, acts of God, acts or threatened acts of terrorism, energy shortage, acts of government, its agencies or instrumentalities, or contingencies or causes beyond such party’s reasonable control, to include material and transportation shortages.
Liability of Taxes: The Customer will pay all sales, revenue, excise or other federal, state, local or foreign taxes (including value added and consumption taxes) with respect to the shipment, use or possession of the Mats, and associated services hereunder, excluding Ad Valorem taxes of SSAS and taxes based on SSAS’ net income or net worth.
Governance: This Agreement will be governed by and interpreted in accordance with the laws of the State of Arizona. The Customer agrees to the jurisdiction and venue of the courts of the Circuit Court for the State of Arizona and Pima County for resolution of any and all disputes that may arise out of or result from any act or omission of a party hereunder. In the event of any legal action related to this Agreement, the Customer shall be entitled to reimburse COMPANY for it costs and fees (including reasonable attorneys’ fees) incurred in such action.
Claims: All claims by customer must be received in writing within 3 days and no returns are authorized for used mats except at FCG Matting’s sole discretion.
Additional terms:
1. Once Purchase Order is signed by Customer’s authorized agent, Customer is financially responsible for the entire amount without exception.
2. All invoices are to be paid within the defined term on the invoice itself.
3. If Customer cancels Purchase Order before the full term or fulfillment of the order listed on the Purchase Order, COMPANY reserves the right to legally uphold Customer financially responsible for the total amount or to reduce the amount based on COMPANY’S sole discretion.
4. If COMPANY agrees to honor a customer’s request to cancel the remaining Purchase Order, the Customer must pay and Company must receive payment within 5 business days of the agreed end of Purchase Order.
5. COMPANY will not discount any pricing based on transportation or material shortages or delays. COMPANY will not discount after agreed PO is signed by Customer, unless at COMPANY’S sole discretion.
6. Unless COMPANY signs an agreement to a specific species of wood to be provided, then what is listed on the Purchase Order will be provided and no changes by Customer can be made unless agreed upon by both parties and an amended purchase order is signed by both parties.
7. Unless a specified due date is listed and agreed upon in the Purchase Order that is signed, COMPANY will not be held responsible for costs, fines, or any other financial obligation that may be attempted to be imposed by the customer if the demands of the due date for delivery is not met. All dates will be committed to but not guaranteed as many factors including but not limited to, material availability and transportation are beyond COMPANY’S control.
8. By signing COMPANY’S Purchase Order, the Customer completely and totally indemnifies COMPANY of any financial or legal obligation associated with the project or projects in which they supply mats and material for.
CIRCUMVENTION: If Customer attempts to circumvent COMPANY’S supplier or transport relationship, Customer agrees to pay all outstanding invoices to COMPANY immediately, including all damages (legal and otherwise) and estimated future lost profits due to circumvention.
RENTAL & LEASE TERMS AND CONDITIONS
Terms: Job-specific rental terms contained within the Quotation shall commence the day that Mats are delivered to the jobsite and shall continue until the Mats are picked up by or returned to the COMPANY (the “Term”).
Rental / Lease Payments: Commencing with the date of shipment of Mats and continuing until the Mats are returned to the COMPANY, the Customer shall pay the COMPANY the Rental / Lease Payments described in the Quotation. Unless otherwise noted, rental payments are stated in daily amounts. Any payments not paid when due shall accrue interest at the rate per month from the date due until paid as stated on credit application. Failure to make a timely payment shall be an event of default.
Service Payments: The Customer shall pay to the COMPANY the Service Payments described in Quotation. Any Service Payments not paid when due shall accrue interest at the rate per month from the date due until paid, as stated in the credit app. Failure to make a timely Service Payment shall be an event of default.
Delivery and Return of Mats: When the Customer is responsible for cost of delivery or return, the COMPANY shall invoice the Customer for the cost of delivery and return of the Mats. Such costs shall include, but are not limited to, freight charges, detention fees and loading fees. In the event the COMPANY agrees that the Mats may be relocated from the original location to another location of the Customer’s choosing, the Customer shall pay all costs for such relocation.
Use of the Mats: Without the prior written consent of COMPANY, the Customer shall retain the Mats in its possession, shall not relocate the Mats to any other location, and shall not permit the Mats to be used or possessed by any third party other than approved subcontractors of the Customer. At all times during the Term, title to the Mats shall remain in the COMPANY, and the Customer shall keep and maintain the Mats free of all liens and encumbrances whatsoever, and where appropriate and applicable the Customer shall obtain waivers of any Customer lenders or landlords in order to ensure no claims are made by such lenders or landlords against the title or value of the Mats while in the possession of the Customer.
Mat Inspection: The Customer agrees to inspect the Mats upon delivery and to promptly notify the COMPANY in the event such inspection determines any non-conformance of the Mats to the terms of the Agreement. The COMPANY can inspect the Mats while in the possession of the Customer.
Liability Insurance: The Customer agrees to obtain comprehensive general liability insurance as well as “all risk” insurance, covering any damage to the Mats while in the possession of, and used by, the Customer, and in the event of any personal injury of property damage claims brought by third parties.
Upon execution of the Agreement, the Customer shall furnish to the COMPANY a certificate of insurance evidencing the foregoing coverage in amounts and with insurance companies reasonably approved by the COMPANY and naming the COMPANY, its affiliates and subsidiaries, as an additional insured and a loss payee. Such insurance shall provide for no less than thirty (30) days prior notice to the COMPANY for any termination of cancellation of such coverages.
The COMPANY agrees to obtain comprehensive general liability insurance covering any liability or damage incurred by Customer, Owner or subcontractors as a result of, or arising from, any negligent or intentional act of the COMPANY with respect to the COMPANY performance of its obligations thereunder. The COMPANY shall furnish to the Customer a certificate of insurance evidencing the foregoing coverage and naming the Customer as an additional insured. Such insurance shall provide for no less than thirty (30) days’ prior notice to the Customer for any termination or cancellation of such coverage.
Damaged Mat Liability and Compensation: The Customer agrees to be responsible for, and assumes all liability for, any and all damage, loss and/or destruction to any Mats, while such Mats are in Customer’s or its subcontractors’ or agents’ possession, custody, or control except damage caused by ordinary wear and tear. As applicable, Customer agrees to pay to the COMPANY: (i) the cost to repair any damaged Mats while in the possession of, and used by, the Customer (except for any damage caused by any act or omission of the COMPANY), or (ii) the above referenced replacement cost of such Mats for Mats that are lost, stolen, destroyed or damaged beyond repair (including chemical contamination), while in the Customer’s possession. Regardless of any rental or lease payments made as contemplated herein, the Mats always shall remain the property of the COMPANY.
Safe Transportation: Prior to the return of the Mats to the COMPANY, and in accordance with all applicable local, state and federal laws, regulations and ordinance, the party that is responsible for loading and transporting the Mats at the end of the project shall ensure the Mats are in such condition that they are safe for transport and free of loose debris.
Accident/Incident Reporting: Customer agrees to provide the COMPANY with a copy of any accident or other incident report related to the possession or use of the Mats as completed by, or submitted to, the Customer or any subcontractor of the Customer within seventy-two (72) hours of the occurrence of any such accident or incident.
Subletting: The Customer shall neither sublet the Mats, nor assign its rights under the Agreement without the COMPANY’S prior written consent, in which event the Customer’s obligations under the Agreement shall continue in full force and effect and, in the case of assignment to another party, Customer shall remain liable for the performance of such obligations and in the case of assignment
Customer shall remain liable for the performance of such obligations jointly and severally with the assignee. Any other type of assignment without the written consent of the COMPANY shall be void and of no force or effect.
The COMPANY hereby warrants to the Customer, with respect to the Mats, that at the time of installation of the Mats:
(a) The COMPANY either has good and marketable title to the Mats shipped to the Customer hereunder or has full rights to provide the Mats to the Customer;
(b) the Mats shall conform to the COMPANY specifications for the Product;
(c) the Mats will not infringe the intellectual property rights of any third party; and
(d) the Mats shall follow any applicable laws and
(e) the Mats will be installed per the mutually agreed upon plan.
THE WARRANTIES SET FORTH IN THIS PARAGRAPH ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, COLLATERAL, STATUTORY OR OTHERWISE, AND WHETHER IN CONTRACT, TORT OR OTHERWISE. SALE, RENTAL OR LEASE OF THE MATS IS MADE ON THE BASIS THAT THERE ARE NO ADDITIONAL EXPRESS OR IMPLIED WARRANTIES THAT THE PRODUCT DELIVERED HEREUNDER WILL BE MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE.