Customer acknowledges that this order is subject to all terms on the face of this Order Confirmation and these Terms and Conditions (the “Agreement”). Any additional terms and conditions set forth in any purchase order or other Customer-issued documents are expressly excluded from this Agreement. Any reference by Custom Rock to Customer’s PO number or other Customer-provided information is for clerical purposes only. The Order Confirmation and these Terms and Conditions constitute the entire agreement between the parties. No Other Contractual Relationship. Customer expressly acknowledges that it desires a contractual relationship with Custom Rock, and that Custom Rock is providing product solely to the Customer for its own use and satisfaction.
All contractual obligations are limited to the relationship between Customer and Custom Rock. Customer acknowledges that Custom Rock expressly disclaims (1) any of Customer’s contractual obligations to any other party, and (2) all representations that any of its products conforms to any third party document, contract or contractual specification. Quotation Expiration: Unless otherwise noted, quotes are valid for 15 days.
Pricing Assumptions: Quotations and pricing set forth in the Order Confirmation are prepared based upon information/data supplied by the Customer to Custom Rock. All elements of the quote, including pricing, lead time, and estimated freight, are subject to change if receipt of new information is materially different from information utilized to develop the quotation and pricing. Delivery and Lead Time: Customer acknowledges that all lead times provided by Custom Rock are dependent upon the quantity and complexity of the order, including the need for custom tooling and Custom Rock’s production backlog, and are purely estimates that may change at Custom Rock’s sole discretion. Unless otherwise noted, production lead times commence upon last receipt from Customer of: (1) Fully executed PO; (2) Pre-production or pre-shipment deposit if required; and (3) any approvals required from Buyer. Estimated lead time may change if Custom Rock’s backlog materially changes prior to such last receipt. Actual ship date is dependent upon receipt of pre-shipment deposit.
Delays caused by factors outside of Custom Rock’s control, including submittals or approvals, may increase lead time. Order Quantities: Customer is responsible for calculating all final quantities. In the event that Custom Rock provides any guidance regarding quantities, Custom Rock assumes no responsibility and makes no warranty, express or implied, that such quantities are sufficient to meet the needs of Customer.
Customer is solely responsible for verifying the sufficiency of all quantities ordered. Plastic Formliner - Additional Provisions: Plastic formliner to be provided in standard size 4’x10’ (nominal) full sheets unless otherwise noted. For any pattern and material combination where square foot quantity results in a fractional sheet, square foot quantity will be rounded up to the nearest full sheet. Order quantities below established minimum quantities per pattern/material combination will be assessed an additional $350 set-up charge. Order Changes: If Customer changes any material aspect of the order after submission to Custom Rock, an adjustment in the price and/or a change in the shipment schedule for such goods may be made by Custom Rock, and Customer shall be bound by any resulting price change or schedule adjustment. Cancellation. Orders accepted by Custom Rock may be canceled by the Customer providing written notice at least three (3) days prior to the estimated ship date. In the event an order is so canceled, Customer is liable for all finished goods, all work in process, all raw materials purchased for the goods, and any other commitment made by Custom Rock for the specific purpose of complying with the Customer’s order.
Reuse Potential: The number of reuses for each grade of formliner is purely an estimate and will vary depending on pattern configuration, proper handling, and jobsite conditions. Additionally, reuse potential assumes that the full integrity of the formliner face is maintained (i.e. no punctures). Custom Rock assumes no responsibility and makes no warranty, expressed or implied, relating to the number of reuses and/or the reuse potential. Deferred Shipments: If a Customer requests to defer or delay shipment of a partial or completed order and Custom Rock agrees to such deferral or delay, which shall be at Custom Rock’s sole discretion, Custom Rock reserves the right to invoice Customer for all completed goods. Storage charges may also apply, at Custom Rock’s discretion. Shipping & Handling: All shipments are FOB St. Paul, MN for elastomeric formliner, and FOB Schertz, TX for plastic formliner. Estimated freight charges (if included) to the designated zip code specified by the Customer are based on a single shipment unless otherwise noted, and subject to change. Order changes initiated by the Customer that result in more than one shipment or truckload may result in increased charges. Actual freight charges will be invoiced on the date of shipment and will be based on prevailing carrier rates at the time of shipment, the required freight mode and the actual destination for the shipment. Title Transfer and Risk of Loss: As all goods are shipped FOB from Custom Rock’s production facilities, both title and risk of loss transfer to Customer when goods are shipped.
It is Customer’s sole responsibility to examine all goods for damage caused by common carrier before signing the Bill of Lading. Customer is responsible for taking any necessary steps to pursue any freight damage claims against the carrier, and Custom Rock assumes no such liability. Deposit & Payment Terms: Unless otherwise noted, a minimum 35% deposit is required before Custom Rock either begins production or ships any order, at Custom Rock’s sole discretion. Payment terms are Net 30 days. A finance charge of the lesser of 1.5% per month (18% PA) or the highest rate permitted by applicable law may be assessed on past due balances.
In the event that Custom Rock initiates any collection process to recover a delinquent balance from Customer, Customer agrees to pay to Custom Rock all collection costs incurred including reasonable attorney’s fees. Custom Rock reserves the right to withhold shipment when it has reasonable doubt about Customer’s financial ability to make payment in full. Custom Rock shall not, in such event, be liable for non-performance in whole or in part. Any waiver or release required by Buyer shall be conditioned up actual receipt of funds by Custom Rock. Taxes: Unless otherwise noted, all prices are exclusive of all federal, state, municipal, or other government excise, sales, use, occupational, or other tax, duty or fee. Any such tax, duty, fee, or charge of any nature whatsoever imposed by any governmental authority is the responsibility of the Customer. Returns: All formliner is fabricated on a per-job basis. As a result, all sales are final and Custom Rock is unable to accept returns of goods or products. Warranty: Custom Rock warrants that the product will conform to the description(s) contained in this quote and will be free from defects in workmanship and/or materials for a period of ninety (90) days from the date of shipment. Custom Rock expressly disclaims any warranty for conformance to any other standard or specification. Customer is responsible for inspecting products for defects. If a potential defect is found, Customer must photographically document the defect and promptly notify Custom Rock in writing of any nonconformity.
The sole and exclusive remedy is limited to the replacement or repair of the defective product, at Custom Rock’s sole discretion. Custom Rock shall bear no responsibility for disposal of defective product. This warranty is void if the product is altered in any way, including cutting or puncturing; or handled or used in a manner inconsistent with Custom Rock’s written specifications or Field Service Bulletins, as issued from time to time. Except as set forth above, Custom Rock makes no warranties as to any goods, products, or services, and expressly disclaims all other warranties whether express, implied or statutory, including the warranties of merchantability and fitness for a particular purpose, non-infringement, or warranties arising from the course of dealings or usage of trade.
LIMITATION OF LIABILITY: Custom Rock is not liable in contract or in tort, including and without limitation, for: negligence, strict liability or otherwise; loss of sales, revenues or profits; cost of capital or funds; business interruption or cost of downtime; loss of use; damage to or loss of use of other property, real or personal; failure to realize expected savings; frustration of economic or business expectations; claims by third parties for economic loss of any kind; or for special, indirect, liquidated, punitive, exemplary, incidental or consequential damages arising in any way out of the performance of, or failure to perform under this agreement, or due to the use of or a defect in any good or product, even if Custom Rock could foresee or has been advised of the possibility of such damages. In no event shall Custom Rock’s liability to customer under any circumstances, including Custom Rock’s negligence, exceed the price of the products or goods subject to any such claim. The parties expressly agree that these limitations on damages are allocations of risk constituting, in part, the consideration for this Agreement, and also that such limitations shall survive the determination of any court of competent jurisdiction that any remedy provided in these terms or available law fails of its essential purpose. Miscellaneous. Custom Rock will not be liable for any delay in performance or non-performance caused by circumstances beyond its control, including, but not limited to, fires, floods, epidemics, pandemics, accidents, wars, government actions, strikes, labor shortages, or inability to obtain materials, equipment or transportation. This Agreement shall be governed and construed in all respects in accordance with the laws of the State of Minnesota. Any controversy or claim arising out of or relating to this Agreement, or for the alleged breach, default, invalidity or illegality thereof shall be venued in Hennepin County, Minnesota, and the parties agree that all such claims shall be brought to binding arbitration, at either parties’ option, according to the AAA Construction Industry Arbitration Rules, and the prevailing party in any action shall be entitled to recover all costs and reasonable attorneys’ fees.
No change or modification of the Order Confirmation or Terms and Conditions shall be binding on Custom Rock unless the change or modification is in writing and signed by Custom Rock.