Rooftop Anchor, Inc.
Standard Sales Terms and Conditions
Unless otherwise specifically agreed to in writing by Rooftop Anchor, Inc. (“RTA”), these Sales Terms and Conditions shall apply to any and all orders placed by any Purchaser for products or services of RTA. In these Sales Terms and Conditions, the party to whom RTA’s Quotation, Sales Order, or Invoice is addressed is referred to as the “Purchaser.”
- ACCEPTANCE. RTA’s acceptance of all orders and all offers and sales by RTA are subject to and expressly conditioned upon Purchaser’s assent to the terms and conditions of these Sales Terms and Conditions. Purchaser’s acceptance of any offer by RTA must be made on such terms and conditions exactly as offered by RTA. Any of Purchaser’s terms and conditions which are different from or in addition to those contained in these Sales Terms and Conditions shall be of no effect unless specifically agreed to in writing by RTA. Commencement of performance or shipment shall not be construed as acceptance of any of Purchaser’s terms and conditions which are different from or in addition to those contained in the Agreement. If a contract is not earlier formed by mutual agreement in writing, acceptance by Purchaser of products or services furnished by RTA pursuant hereto shall be deemed Purchaser’s assent to all of the terms and conditions of these Sales Terms and Conditions.
These Sales Terms and Conditions shall be governed by the laws of the State of Utah as if made and any transactions contemplated hereby are to be performed entirely within such state, without reference to its conflicts of laws principals. Purchaser submits to the exclusive personal jurisdiction of United States Federal District Court in Salt Lake City, Utah or Utah State Courts located in Salt Lake City, Utah (the “Utah Courts”). Purchaser agrees that the Utah Courts have subject matter jurisdiction over all claims and disputes and agrees that venue for resolution of any claims or dispute properly lies in the Utah Courts.
- ORDERS AND PRICES. Proposals for RTA to supply products or services to Purchaser are valid for 30 days from issuance unless otherwise agreed to by RTA in writing. Orders may not be cancelled or modified, either in whole or part, without RTA’s express written consent. If RTA consents to any order modification or cancellation, it may impose an order modification or cancellation fee. All prices are as stated in RTA’s proposal or quote and specifically override any prices referenced in Purchaser’s purchase order. Prices for orders for immediate shipment are prices in effect at time of receipt of order. Qualifying orders specifying future delivery will be invoiced at prices and terms in effect at time of shipment. Proposals for RTA to provide services including without limitation, installation, assembly, engineering, freight, transportation, or removal of any existing fall protection system shall be at the prices specified by RTA in such proposal. Unless otherwise agreed to in writing by RTA, the prices stated in any proposal provided by RTA are in U.S. dollars and do not include payment or performance bonds, transportation insurance, sales tax, use tax, any other taxes, duties, fees or assessments imposed by any jurisdiction. Likewise, proposals provided by RTA do not include additional costs required for participating in an Owner Controlled Insurance Program (“OCIP”) or similar program and the cost for such programs will be added to the prices stated in RTA’s proposal.
All applicable taxes will be paid by Purchaser, unless Purchaser provides RTA with appropriate tax exemption certificates, and if Purchaser requests that RTA ship products to Purchaser’s customer, Purchaser must provide RTA with a valid resale certificate or other valid exemption certificate for its customer, and Purchaser hereby indemnifies RTA for all taxes, costs, fees, expenses, penalties, and other charges if Purchaser cannot provide adequate evidence that it remitted the applicable sales tax to the destination state. Any amounts paid at any time by RTA that are the responsibility of Purchaser shall be reimbursed to RTA upon demand. All prices and other terms are subject to correction for typographical or clerical errors.
- TERMS OF PAYMENT. All payments shall be in U.S. dollars. Purchaser shall pay for products in cash upon delivery, unless an earlier time for payment is specified in the order acknowledgement (in which case payment shall be due at the time so specified), or unless RTA elects to extend credit to Purchaser as specified below. Each shipment shall be considered a separate and independent transaction and payment for each shipment shall be due accordingly.
RTA may, at its option, elect to extend credit to Purchaser. Unless otherwise agreed to in writing by RTA, Purchaser shall take no discounts for early payment. If RTA extends credit to Purchaser, invoices will be issued upon shipment of goods and payment shall be due in full within thirty (30) days from the invoice date or such other date as may be specified on the invoice. RTA reserves the right to change the amount of or withdraw any credit extended to Purchaser.
Unless otherwise agreed to in writing by RTA, amounts owed for services will be invoiced upon completion of the work, provided that in the case of proposals taking longer than 30 days to complete, Purchaser shall make monthly progress payments to RTA for that portion of the proposal performed in the preceding month in accordance with monthly billings prepared by RTA. Payment of such invoices shall be due within thirty (30) days from the invoice date or such other date as may be specified on the invoice.
Amounts not paid when due shall be subject to interest at the rate of one and one-half percent (1½%) per month or, if less, the maximum rate permitted by law.
In the event of the bankruptcy or insolvency of Purchaser, or the filing of any proceeding by or against Purchaser under any bankruptcy, insolvency or receivership law, or in the event Purchaser makes an assignment for the benefit of creditors, RTA may, at its election and without prejudice to any other right or remedy, exercise all rights and remedies granted RTA in Section 8 as in the case of a default by Purchaser under these Sales Terms and Conditions.
RTA may, at its option, factor any invoice or assign the right to collect payment on any invoice to any party without prior notice or consent of Purchaser.
- DELIVERY, TITLE AND RISK OF LOSS. Unless otherwise agreed to in writing by RTA, products shall be shipped FOB RTA’s manufacturing facility in Heber City, Utah or FOB any designated RTA inventory site to any location designated by Purchaser and shall be deemed delivered to Purchaser when delivered to the transportation company at the shipping point. Purchaser acknowledges and agrees that any price quotes provided by RTA relating to freight or transportation charges shall be a courtesy estimate only. Unless otherwise agreed to in writing by RTA, all actual freight or transportation charges and expenses shall be added to the invoice and paid by Purchaser, including the cost of any insurance against loss or damage in transit which RTA may obtain in its subjective discretion. RTA reserves the right to ship products freight collect. RTA hereby reserves, and Purchaser hereby grants to RTA, a purchase money security interest in all products purchased under these Sales Terms and Conditions, together with all proceeds thereof, including insurance proceeds. Such security interest secures all of Purchaser’s obligations arising under these Sales Terms and Conditions, and any other agreements between Purchaser and RTA, until all amounts due RTA hereunder have been paid in full. Purchaser agrees upon RTA’s request to sign appropriate financing statements evidencing RTA’s security interest.
Subject to the security interest reserved to RTA, title and risk of loss and/or damage to products shall pass to Purchaser upon delivery of the products to the transportation company at the shipping point. Confiscation or destruction of or damage to products shall not release, reduce or in any way affect the liability of Purchaser. In the event Purchaser rejects or revokes acceptance of any products for any reason, all risk of loss and/or damage to such products shall nonetheless remain with Purchaser unless and until the same are returned at Purchaser’s expense to such place as RTA may designate in writing.
All products must be inspected upon receipt and claims filed by Purchaser with the transportation company when there is evidence of shipping damage, either concealed or external.
- PRODUCTS AND SERVICES. Purchaser acknowledges and agrees that certain products supplied by RTA may require some assembly. Unless RTA has agreed in writing to provide installation services, Purchaser assumes full responsibility for the proper installation of any products supplied by RTA, including without limitation, assembly, engineering and method of installation. Installation guidelines are available from RTA upon request. Unless otherwise agreed to in writing, any RTA proposal for services shall not include reinforcement of attachment and bearing points, reinforcement of existing structure, roofing or waterproofing including flashing of any penetration related to services provided, setting of cast-in-place products or block outs, opening or closing of the metal deck, verification of stanchion flashing heights, hoisting of equipment to the rooftop or any area that RTA will perform services, or electrical services at every roof level.
Unless otherwise agreed to in writing by RTA, any RTA proposal for services shall be based on drawings or other site information provided by Purchaser. RTA shall be entitled to rely on such drawings and other site information provided by Purchaser and shall not be charged with or expected to have any firsthand knowledge about the nature of the site where the products are to be installed or any physical conditions or difficulties which might be encountered during installation. Accordingly, unless otherwise agreed to in writing by RTA, any proposals for RTA to supply products or services, including without limitation, engineering services related to products supplied by RTA, are based solely on representations and information provided to RTA by Purchaser. In the event RTA supplies services to Purchaser RTA shall be entitled to rely on Purchaser’s representations regarding job site conditions and measurements and RTA shall not be liable to Purchaser for any claim for an adjustment in price, design deficiency, or any misunderstanding by RTA, if such claim directly or indirectly arises from Purchaser’s failure to correctly estimate measurements, conditions, or other factors where the services are to be performed.
Likewise, unless otherwise agreed to in writing, any proposals for RTA to provide services are based on a single mobilization. In the event RTA requires multiple mobilizations to complete the services under any proposal due to Purchaser’s failure to correctly estimate measurements, conditions, or other factors, RTA shall be entitled to additional compensation for extra work, and/or lost time and profits.
RTA may, in its sole subjective discretion, modify the design, specifications, or the manufacturing process of any of its products in any manner without notice.
- PERFORMANCE. RTA will make a reasonable effort to observe the dates specified in its proposal or such later dates as may be agreed to by Purchaser for delivery or other performance. Provided that RTA may, in its sole subjective discretion, reschedule any outside installation if the website www.weatherchannel.com reports a 20% or greater chance of rain at the location. Furthermore, RTA shall not be liable for any delay in delivery or failure to perform due to acceptance of prior orders, strike, lockout, riot, war, fire, acts of God, accident, delays caused by weather, delays caused by any subcontractor or supplier or by Purchaser, technical difficulties, failure or breakdown of machinery or components necessary for order completion, inability to obtain or substantial rises in the price of labor or materials or manufacturing facilities, curtailment of or failure to obtain sufficient electrical or other energy supplies, or compliance with any law, regulation, order or direction, whether valid or invalid, of any governmental authority or instrumentality thereof, or due to any circumstances or any causes beyond its reasonable control, whether similar or dissimilar to the foregoing and whether or not foreseen (collectively “Delay Events”). As used herein, “performance” shall include, without limitation, fabrication, shipment, delivery, assembly, installation, testing and warranty repair and replacement, as applicable. In the event RTA requires extra time to complete the services due to Delay Events, Purchaser’s sole remedy shall be a time extension for the performance of the services to be performed.
Purchaser agrees that any delay in delivery of any products or services or failure to deliver or perform any service pursuant to any proposal or pursuant to these Sales Terms and Conditions shall not be grounds for Purchaser to terminate or refuse to comply with any provisions hereof and no penalty of any kind shall be effective against RTA for such delay or failure.
- ACCEPTANCE. All products delivered hereunder shall be deemed accepted by Purchaser as conforming to these Sales Terms and Conditions, and Purchaser shall have no right to revoke any acceptance, unless written notice of the claimed nonconformity is received by RTA within thirty (30) days of delivery thereof. Notwithstanding the foregoing, any use of a product by Purchaser, its agents, employees, contractors or licensees, for any purpose, after delivery thereof, shall constitute acceptance of that product by Purchaser.
Invoiced overages and product shortages must be reported within 30 days of invoice date. Any discrepancy not reported within 30 days will not be considered for an adjustment. RTA will not receive or credit any products returned without RTA’s consent.
Unless otherwise agreed to in writing by RTA, Purchaser may not cancel or return any products specially manufactured by RTA for Purchaser.
- DEFAULT AND TERMINATION. Purchaser may terminate these Sales Terms and Conditions if RTA materially defaults in the performance of its obligations hereunder and fails to cure such default within sixty (60) days after written notice thereof from Purchaser. Such termination shall be Purchaser’s sole remedy in the event of a default by RTA.
Purchaser shall be deemed in material default under these Sales Terms and Conditions if Purchaser fails to pay any amounts when due hereunder, cancels or attempts to cancel these Sales Terms and Conditions prior to delivery or refuses delivery or otherwise fails to perform any of its obligations hereunder or fails to pay RTA any sums due under any other agreement or otherwise. In the event of a material default by Purchaser, RTA may, upon written notice to Purchaser, (1) suspend its performance and withhold shipments, in whole or in part, (2) terminate these Sales Terms and Conditions, (3) declare all sums owing to RTA immediately due and payable, (4) recall products in transit, retake same and repossess any products held by RTA for Purchaser’s account, without the necessity of any other proceedings, and Purchaser agrees that all products so recalled, taken or repossessed shall be the property of RTA, provided that Purchaser is given credit therefor, and/or (5) if Products are installed or RTA performs services upon real property, exercise lien rights including without limitation, filing or recording mechanic’s and materialmen’s liens arising out of work performed or materials supplied, filing of stop notices, or other encumbrance. Exercise of any of the foregoing remedies by RTA shall not preclude exercise of any of the others, and neither the existence nor exercise of such remedies shall be construed as limiting, in any manner, any of the rights or remedies available to RTA under the Uniform Commercial Code or other laws.
- PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS. The sale of products or provision of services hereunder does not convey any express or implied license under any patent, copyright, trademark or other proprietary rights owned or controlled by RTA, whether relating to the products sold, drawings or depictions that may accompany products or the provision of services, any manufacturing process, or any other matter. All rights under any such patent, copyright, trademark or other proprietary rights are expressly reserved by RTA. Without RTA’s prior written consent, Purchaser shall not make any use of any drawings or depictions that may accompany RTA’s products or provision of services. Furthermore, Purchaser agrees not to infringe, directly or indirectly, any patents, copyrights, trademarks, or other proprietary rights of RTA.
- LIMITED WARRANTY. RTA shall provide to the original purchaser or owner of a project, whichever the case may be, a limited warranty for products RTA provides or services that RTA performs under these Sales Terms and Conditions. The terms, limitations and exclusions for the limited warranty for each product are available from RTA upon written request. RTA reserves the right to modify its limited warranty at any time in its sole discretion.
- LIMITATION OF LIABILITY AND CLAIMS. If RTA, in its sole discretion, approves a claim covered under the Limited Warranty, RTA’s sole obligation will be to repair or replace defective items or services with items of comparable value to the extent commercially practicable. THE FOREGOING WILL CONSTITUTE THE EXCLUSIVE REMEDY FOR THE LIMITED WARRANTY. RTA’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE SHALL IN NO EVENT EXCEED THE AMOUNT, IF ANY, RECEIVED BY RTA HEREUNDER. LIABILITY OF RTA IS LIMITED TO THE ABOVE, AND IN NO EVENT WILL RTA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ECONOMIC, LOSS OF PROFITS, OR OTHER DAMAGES OF ANY KIND WHATSOEVER. This provision is applicable to claims for breach of warranty, tortious conduct, or any other cause of action asserted against RTA.
- ENTIRE AGREEMENT. these Sales Terms and Conditions constitutes the entire agreement of the parties and supersedes all prior negotiations, proposals, agreements and understandings, whether oral or written, relating to the products to be purchased hereunder or otherwise relating to the subject matter of these Sales Terms and Conditions. Any representation, warranty, course of dealing or trade usage not expressly contained or referenced herein shall not be binding on RTA.
- ATTORNEY’S FEES. In the event Purchaser fails to comply with these Sales Terms and Conditions or defaults in payment of the purchase price of any proposal or any part thereof, Purchaser agrees to pay RTA’s expenses, including reasonable attorney’s fees and court costs, incurred by RTA.
- ASSIGNMENT. Purchaser shall not assign or transfer any rights or claims under these Sales Terms and Conditions without the prior written consent of RTA, and any purported assignment made without such consent shall be void. These Sales Terms and Conditions shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties.
- GENERAL. No modification, amendment, rescission, waiver or other change in these Sales Terms and Conditions shall be binding on RTA unless agreed to in writing by RTA. The invalidity or unenforceability, in whole or in part, of any provision herein shall not affect the validity or enforceability of any other provision herein. Failure or delay on the part of either party to exercise any right, power, privilege or remedy herein shall not constitute a waiver thereof. The section headings contained herein are for convenience of reference only and are not to be used in the construction or interpretation of these Sales Terms and Conditions. In the event that any of the terms or conditions of these Sales Terms and Conditions modify or conflict with any provisions, terms, or conditions noted on any Quotation, Sales Order, or Invoice, these terms shall control.
- NOTICES. Notice to RTA under these Sales Terms and Conditions or any transaction contemplated hereby must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address below or to such other address (including facsimile or email) that RTA may designate from time to time, and will be effective upon receipt.
Rooftop Anchor, Inc.
844 South 430 West, Ste. 200
Heber City, UT 84032
Revision Date: September 5, 2014