Duties of Buyer
Standard Terms and Conditions
1.ACCEPTANCE: Proposal valid for thirty (30) days. Acceptance of order by BTC is subject to credit approval. All prices and clerical errors are subject to change and/or correction without notice. The work to be accomplished as a result of this proposal is limited to strictly to the work outlined in this proposal. No changes are valid unless in writing. SUBMISSION OF A PURCHASE ORDER IN RESPONSE TO A BTC PROPOSAL ISCONCLUSIVE ASSENT TO AND ACCEPTANCE OF THESE TERMS AND CONDITIONS UNLESS SPECIFIC TERMS ARE OBJECTED TO IN WRITING BY BUYER AND ACCEPTED IN WRITING BY BTC.
2. TERMS: In all cases, invoices shall be issued upon completion of fabrication, regardless of whether materials have been shipped. Buyer agrees that if materials are not shipped immediately after fabrication and buyer refuses to pay the invoice until such shipment, Buyer agrees to accept immediate delivery of the materials and to pay the invoice within stated term stated in proposal. Invoices are not paid within 10 days of invoice date shall, as an additional remedy, accrue interest at the rate of 1 ½% per month (or maximum legal rate, whichever is greater) from invoice due date until paid in full. No other terms shall apply unless accepted in writing by an authorized representative of BTC. Payment to BTC shall not be contingent upon Buyer having received payment from the Owner.
3. TRANSFER OF OWNERSHIP: Ownership of materials fabricated shall pass to the Buyer upon invoicing or shipment to Buyer, whichever is earlier time. Upon transfer of ownership to Buyer, Buyer assumes the risk of material obsolescence as well as risk of material market value decline.
4. RISK OF LOSS: BTC will maintain insurance coverage against risk of loss (property damage) on all material awaiting shipment. Upon shipment, risk of loss passes to Buyer.
5. MATERIAL STORAGE: If Buyer is unable or unwilling to accept delivery immediately upon completion of fabrication BTC will store towers and other materials at its discretion and under terms and conditions to be negotiated with Buyer.
6. TAXES:Prices do not include excise, sales, privilege, import/export duties or any other tax, duty or assessment which may be imposed upon BTC. However, all such taxes, duties or assessments are the responsibility of the Buyer.
7. CHANGE ORDERS/CANCELLATIONS:Purchase orders or contract may not be changed or canceled without prior written approval by BTC. Any order canceled after any work has been done by BTC, such as drawings, productions, etc, will have a cancellation charge to be determined solely at the discretion of BTC, for whatever work has been performed. If Buyer so chooses, it shall have the right to receive the material already performed at the time of cancellation at the quoted price. BTC reserves the right to change or modify the design or construction of any of its products and to substitute material equal to or superior to that originally specified.
8. DELAYS: For any delay due to acts of God, fire, malicious mischief, insurrection, riot, war (declared or undeclared), explosions, epidemics, acts of Buyer, its employees, agents, or subcontractors, strikes, freight embargoes, unusually severe weather conditions, delivery delays by the carrier, or any other cause whatsoever beyond the control and without fault of BTC or subcontractors, whether similar to or dissimilar from causes herein enumerated, then BTC shall not incur any liability consequential or otherwise for such delays, including crew and/or equipment downtime and an equal extension of time within which to perform shall be allowed by BTC. Weather shall be unsuitable for work when site conditions are such that at 7am either wind chill is 10 degrees or maximum wind velocity exceeds 20 mph. Crew downtime incurred for any reason, including but not limited to, incorrectly fabricated parts, part shortages, damaged parts, may be reimbursed only after written notice from Buyer to BTC. Such notice shall include a complete description of the problem, including dates, times and part numbers. Reimbursement for claims for crew downtime shall be at BellTower’s sole discretion following receipt of such notice.
9. DELIVERY: All prices are F.O. B BTC’s warehouse or storage yard, unless prior alternative arrangements are agreed to in writing by both BTC and Buyer. Offloading at point of destination not included unless specifically stated otherwise. BTC will ship materials by common carrier. The carrier (through its driver) shall determine whether the site is accessible for its equipment. If the carrier determines that it is impossible to reach the site without injury/damage to the load, truck or driver, the Buyer is responsible for finding an alternative site for unloading. No costs shall be incurred by BTC as a result of the carrier’s determination that the site is inaccessible for its equipment. Buyer must make careful inspection of materials when received and make all claims for damage or loss to BTC within 48 hours of receipt. It is BTC’s intent to accommodate all delivery dates and times set by Buyer. BTC does not assume liability for downtime suffered by Buyer because of delayed delivery beyond the control of BTC.
10. INVENTORY: If BTC has not contracted to install the tower, it is the Buyer’s sole responsibility to inventory materials received and notify BTC in writing within 48 hours if there are shortages or discrepancies in materials received. If Buyer fails to notify BTC within 48 hours the cost of replacement parts and freight for the replacement parts becomes Buyers responsibility.
11. RETURNED PRODUCTS: Prior written authorization from BTC is required for all returned products. When return is authorized, it must be received within 60 days after shipment. Freight prepaid to a destination of BTC’s choice, and be in new condition. All returned products are subject to a restocking charge. Only products specifically approved for return by BTC will be considered for return and credit. Non-sellable products returned to BTC will be scrapped and no credit will be given.
12. INDEMNIFICATION: Buyer shall protect, defend and indemnify BTC and its officers, directors, agents and employees for , from and against all claims, demands, expenses (including reasonable attorney fees) and causes of action of every kind and character that arise out of or are related to the work under this agreement and are caused by or arise out of Buyers negligence, willful misconduct or other acts of omissions which impose upon Buyer strict liability, and that result in personal injury, death, property loss or damage. BTC shall protect, defend and indemnify Buyer and Buyer’s officers, directors, agents and employees for, from and against all claims, demands, expenses (including reasonable attorney fees) and cases of action of every kind and character that arise out of or are related to the work under this agreement and are caused by or arise our of BTC negligence, willful misconduct or other acts or omissions which impose upon BTC strict liability and that result in personal injury, death, property loss or damage. If such claim, demand, expense or cause of action is caused by or arises out of the joint or concurrent negligence, willful misconduct or acts of omissions of BTC and Buyer, each party shall indemnify the other to the extent of the indemnifying party’s negligence, willful misconduct or omissions.
13. INFRINGEMENT: In the event Buyer receives a claim that the product or any part thereof infringes upon a patent, copyright or trademark rights of others, Buyer shall immediately notify BTC in writing of all such claims. BTC shall defend, at its own cost, any and all suits or proceedings, or settle such claims, procure for the Buyer the right to use the products or modify the products to avoid infringement. In any event, BTC will indemnify and hold Buyer harmless completely and at all times for any resulting costs or damages and expenses including reasonable attorney’s fees, arising from suit, claim or demand for actual or alleged infringement BTC shall have no liability for any claim based upon the combination, operations or use of any product not supplied by BTC, or based upon alteration of product by someone other than BTC.
14. CONFIDENTIALITY: BTC and Buyer agree that each will disclose to the other proprietary information regarding matters dealing with actions necessary to carry out these terms, except information that the party is precluded from disclosing under applicable law or regulation or by valid and binding agreements with third parties. The parties agree that each will keep the other’s proprietary information and all related matters confidential and prevent disclosure of said information by its agents, employees or representatives.
15. WARRANTY: BTC warrants to Buyer that the products manufactured by BTC will be free from defects or materials and workmanship for a period of (1) one year from date of shipment. BTC sole obligation under these warranties will be limited, at BTC‘s option and expense, to either repairing or furnishing a replacement. FOB BTC’s warehouse or storage yard for the products or parts thereof which BTC determines do not conform to these warranties and Buyer’s exclusive remedy for breach of any such warranties will be enforcement of such obligations of BTC. BTC expressly provides that it is not responsible for labor costs involved in the re-installation of such products or parts unless BTC installed the products or parts initially. BTC does not warrant any material, product or labor not contracted for, manufactured or furnished by BTC. This warranty shall be effective only if Buyer installs all materials according to BTC’s recommendations and specifications and that Buyer, during the warranty period, shall regularly, not less than semi-annually, inspect and properly maintain all items. THE FORREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF MERHCANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER TYPE, WHETHER EXPRESS OR IMPLIED. IN NO EVENT SHALL BTC BE LIABLE FOR CONSEQUENTIAL DAMAGES, NOR SHALL BTC LIABLILITY ON ANY CLAIMS FOR DAMAGES ARISING OUT OF OR CONNECTED WITH THE SALES CONTRACT OR THE MANUFACTURE, SALE, DELIVERY OR USEOF THE PRODUCTS EXCEED THE PURCHASE PRICE OF THE PRODUCT.
16. ASSIGNMENT: BTC reserves the right to assign, transfer, and subcontract or delegate responsibilities under the Purchase Order in whole or in part without prior written approval of Buyer. Any such transfer does not relieve BTC from its obligation to Buyer under the Purchase Order.
17.PROPRIETARY NOTICE: Title to all drawings, specifications, brochures, proposals, reprints, copies, copies of copies or any other data furnished to Buyer remain with BTC. Buyer shall not reproduce copy or disclose such information in whole or in part for any purpose without prior written permission from BTC.
18. DESIGN: Tower design and rigidity shall be in accordance with TIA/EIA 222-F, as amended to date unless specifically stated otherwise on the face of this proposal. Buyer shall specify andy specific design parameters required to conform to local, state or federal requirements which may affect proposal price. Plot plans with tower orientation and antenna mounting elevations and azimuths shall be provided by Buyer with the Purchase Order.
19. LIGHTING REQUIREMENTS: Buyer agrees to comply with the latest standards set forth by the FAA, FCC and other local, state or federal regulations or ordinances for tower erection and lighting. Buyer confirms that the lighting kit ordered for installation on the tower conforms to all such standards and indemnifies BTC for any loss or expenses, including attorney fees, for noncompliance or nonconformance with such standards. It shall be the Buyer’s responsibility to provide adequate electrical supply at the base of the tower.
20. PHOTOGRAPHS: BTC at all times reserves the right to take pictures of any or all of its products after installation for advertising purposes, except those which are under classified government control.
21.BELL TOWER REMEDIES:
(a.) If BTC discovers Buyer has received goods while insolvent, BTC may reclaim goods upon demand made within (10) days of receipt. If Buyer has misrepresented its insolvency in writing to Buyer within three (3) months of delivery of goods, this (10) day limit does not apply. If successful, reclamation of the goods shall be BTC’s exclusive remedy as to the goods reclaimed.
(b) If Buyer fails to pay the purchase price under the terms set forth above, then BTC may recover the price of goods accepted and may also recover the price of goods identified to the sales contract which have not yet been delivered to the Buyer and which cannot be resold within a commercially reasonable time, BTC may also recover incidental damages, including, but not limited to, any commercially reasonable charges, expenses or commissions in stopping delivery, in the transportation, care and custody of goods after the breach and any expenses in connection with the collection of the purchase price under this contract.
© Notwithstanding the provisions of Paragraph 2 hereof contemplating that the Buyer will pay for the goods subsequent to invoicing, if at any time BTC shall determine that its prospect of receiving such payment is insecure; BTC may retain possession of, and have a security interest in, such goods until it receives payment therefore in cash.
(d) In addition to other remedies set out herein, BTC shall also be entitled to file a mechanics’ lien against the real estate on which the material is being erected.
(e) No remedy conferred by any specific provision herein is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder now or hereafter existing in law or in equity, or by statute or otherwise. The election of one or more remedies by either party shall not constitute a waiver of the right to pursue other available remedies.
22. GOVERNING LAW: Contracts formed as a result of this proposal and the performance thereof shall be governed by principals of contract law under the laws of the State of Oklahoma. Jurisdiction to resolve any dispute arising hereunder is agreed to be the state and federal courts located in Rogers County, Oklahoma.
23. ARBITRATION: The parties agree to submit to binding arbitration all claims, disputes and controversies (whether in tort, contract or otherwise) arising between the parties which relate in any way to this contract. Arbitration under this contract will be governed by applicable state and federal arbitration statues and proceeds in Tulsa, Oklahoma or such other location as the parties may agree in accordance with the American Arbitration Association’s commercial arbitration rules (AAA Rules). Arbitration will be conducted before a single neutral arbitrator selected in accordance with AAA rules. The award of the arbitrator shall be final and judgment upon the award rendered may be entered in any court having jurisdiction. This provision shall not apply to any claim for which any insurance company furnishes a defense for or on behalf of BTC.
24. ENTIRE AGREEMENT: These terms and conditions are solely for the benefit of the BTC and Buyer hereto and, in addition to the proposal attached hereto, represent the entire and integrated agreement between the parties, and unless specifically referenced herein supercedes all prior negotiations, representations or agreements, either written or oral.
25. WAIVER: No waiver of any provision shall be deemed or constitute a waiver of any other provision herein nor shall a waiver be construed as a continuing waiver.
26. SURVIVAL OF OBLIGATIONS: The termination of this Agreement shall not affect the obligations of either party to the other that arises under the terms conditions of this Agreement, rights arising from this Agreement, or causes of action which have accrued prior to the date of the termination.
27. FREIGHT: In addition to the freight charges agreed to by the parties in the Purchase Order and/or Proposal, the following terms apply:
- ADDITIONAL FREIGHT CHARGES:
(1.)Unloading Delay: The Buyer will have two hours from the scheduled arrival time to unload the shipment. If carrier is delayed more than the free time allowed, an additional rate per hour or maximum charge per day may be applied.
(2.)Layover: If the Buyer requests the carrier to hold a delivery overnight to accommodate unloading, layover charges may be incurred in addition to any other unloading delays.
(3.)Redirection: When a load is diverted to a new location by the Buyer, a new point to point rate will be established, as well as additional mileage fees if required.
(4.)Vehicle Furnished by BTC and Not Used By the Customer: If the Buyer cancels a shipment on the same day the shipment was scheduled to leave BTC’s factory and the truck has been dispatched to load, a “truck not used” fee could be applied, in addition to charges for material handling. If notice to cancel the shipment is given (24) twenty four hours prior to the scheduled departure date, no additional fee will be apply.
(5.)ADDITIONAL EXPENSES: If Buyer incurs additional expenses due to the negligence of BTC or a freight carrier, Buyer must provide BTC, within ten (10) days of the scheduled delivery date, documentation and any applicable invoices describing in detail the additional expenses. If such documentation is not received within ten (10) days after the scheduled delivery date, BTC shall have no other responsibility for such additional expenses. In addition to the documentation required by BTC, BTC also requires that additional expenses be invoiced separately to BTC. Under no circumstances may the Buyer simply “short pay” BTC’s invoice related to the delivery. If BTC investigation indicates such additional expenses were the results of Buyer/Crew’s negligence or neglect, Buyer/Crew shall indemnify BTC fro all such charges including, but not limited to crew downtime, liquidated damages, interest, rental expenses, carrier-related charges and other similar charges.