Master Terms, Conditions and Warranties – Water Tanks

1. LEGAL EFFECT. Fiberglass Tank Solutions, LLC (hereafter “Seller”). These terms and conditions are incorporated into every order placed by Purchaser (hereafter “Buyer”). Any language in Buyer’s purchase order or correspondence is rejected unless expressly agreed to in writing by an authorized representative of Seller. Buyer’s submission of a purchase order constitutes acceptance of these Master Terms, Conditions, and Warranties, notwithstanding any inconsistent language therein. Buyer’s purchase order is incorporated only to the extent it specifies the nature and description of the Goods and/or Services, and only to the extent consistent with any Estimate or Order Acknowledgment & Shipping Agreement (hereafter “Acknowledgement”), issued by Seller. In the event of conflict between an Estimate and Acknowledgment, the Acknowledgment prevails. Seller may revise these Master Terms, Conditions and Warranties from time to time; all Orders shall be subject to the most recently posted version upon Buyer’s notification. Buyers acknowledge having the authority to sign documents on behalf of their organization and to bind them to contractual and financial obligations.

2. Estimates are subject to change without notice in all respects — including prices, delivery dates, terms, quantities, and specifications, until a Seller’s Acknowledgement is negotiated in good faith and accepted by both Buyer and Seller.

3. ACCEPTANCE Seller’s Acknowledgement form constitutes a binding contract governed by the laws of the State of Missouri. To the extent these terms conflict with terms in any correspondence, purchase orders, or confirmations from Buyer, these terms prevail. Seller is an independent contractor. This agreement constitutes the entire agreement between the parties regarding the Goods and/or Services under Seller’s Acknowledgement and supersedes all prior negotiations, representations, or agreements, whether oral or written. Failure to enforce any provision shall not constitute a waiver of subsequent enforcement. If any provision is unenforceable or conflicts with applicable law, the remaining provisions remain in effect. These terms may only be amended by written agreements executed by an authorized representative of each party and shall not be varied by any prior course of dealing or trade usage.

4. TERMS OF PAYMENTS
   • Establishing Payment Terms: Payment terms shall be determined by a credit review. Seller’s allowed credit limit and payment terms shall be corresponded in writing and noted on the Acknowledgement. All Orders may require full or partial prepayment prior to order acceptance. Payment terms apply to partial and complete shipments. Full payment is due within the terms.

• • Bona Fide Dispute: Buyer shall notify Seller in writing of any good-faith dispute regarding invoice items. Disputed amounts remain due to agreed terms. After resolution, Seller will issue a credit or payment for the resolved disputed amount.
  • Delay of Shipment: If Buyer requests or causes a delay in shipment, payment is due based on original terms and/or shipment date per Acknowledgement.  Storage fees will apply.
  • Bankruptcy: If any bankruptcy or insolvency proceeding is initiated by or against Buyer, or if Seller has reasonable grounds to be insecure about Buyer’s ability to perform, Seller may: (a) cancel the Order; (b) revoke or change credit terms; (c) suspend performance until adequate assurance is provided; (d) require full payment before shipment; or (e) exercise any other rights provided by law.
  • Past Due Payments: Accounts past due shall bear interest at the Federal Prime Interest Rate plus two percent (2%) per month or the maximum rate permitted by law, until paid in full. A partial month is prorated by the day for interest calculation.
  • Default: In the event of default, Buyer shall reimburse Seller for all damages, collection costs, legal fees, attorney’s fees, court costs, interest, and other recovery costs. The warranty will be null and void if payment goes into default, and all concerned parties shall be notified.

5. PRICES AND PRICE CHANGES: Unless Seller has issued a limited period of price protection, prices are subject to change with notice. Pricing is honored per the Estimate or as agreed in a negotiated purchase order. Prices are subject to escalation for documented increases in material and/or labor costs incurred by Seller prior to fabrication. Buyer will receive prompt notice of any increase and may cancel undelivered goods subject to cancellation provisions if the new price is unacceptable. Prices are for products only and do not include taxes, freight, surcharges, supplier price increases, supply chain disruption, scarcity of goods, or Force Majeure Events. Seller may increase freight prices without advance notice to reflect general market rate increases or regulatory changes. Increased pricing applies to all Goods shipped on or after the effective date. Buyer shall notify Seller in writing of any proposed Change Order, including documentation sufficient for Seller to assess impact. No changes are effective until agreed in writing by both parties, specifying changes to scope, delivery date, price, or payment terms.

6. BLANKET ORDERS AND PREPAID ORDERS: Seller may, according to its discretion, accept blanket purchase orders and/or prepaid orders for the purchase of multiple Goods with staggered delivery over a specified period. Blanket orders shall be subject to this Master Terms, Conditions and Warranties document and the following additional provisions:

• • Order Requirements: All blanket purchase orders shall contain, at a minimum: a purchase order number, unit pricing, total quantity, scheduled quantities, and release delivery dates for each shipment (the “Delivery Schedule”). The Delivery Schedule shall be agreed upon in writing by both parties at the time of Acknowledgement. Blanket orders shall have a maximum duration of twelve (12) months from the date of first shipment. Any extension beyond twelve (12) months must be approved in writing by Seller’s management.
  • Release Orders: Each shipment under a blanket order shall be initiated by a written release order issued by Buyer in accordance with the Delivery Schedule.  Each delivery pursuant to a release order shall constitute a separate sale for purposes of these Terms and Conditions, including but not limited to warranty, title transfer, and risk of loss.
  • Prepayment: Where Buyer elects to prepay for all or a portion of a blanket order, these payments may be treated as customer deposits and payment shall be applied against each release order as it is noted on the Acknowledgement. Seller shall maintain a running accounting of prepaid amounts applied and remaining balances, which shall be made available to Buyer upon request. Prepayment does not relieve Buyer of any other obligations under these Terms and Conditions.
  • Price Protection: For prepaid or blanket orders, the unit price shall be fixed for the duration of the Delivery Schedule as agreed at the time of Acknowledgement, provided that the Delivery Schedule does not exceed twelve (12) months from the date of first shipment. For non-prepaid blanket orders, Seller reserves the right to adjust pricing in accordance with Article 5 (Prices and Price Changes), provided that Seller shall give Buyer not less than thirty (30) days’ written notice of any price adjustment applicable to unshipped release orders.
  •  

7. TAXES. All estimates exclude applicable taxes and duties. Buyers are responsible for all such taxes. If Seller is required to pay any such taxes, or fines resulting from Buyer’s failure to pay, Buyer will reimburse Seller upon receipt of an invoice. Buyer shall provide a valid resale or tax exemption certificate before shipment for tax-exempt sales. For non-exempt sales, Seller will collect and remit applicable sales or use tax based on the delivery address.

8. COMPLETION DATE AND DELAYS. Completion dates on the Acknowledgment are approximate and subject to Buyer’s return of approval drawings and agreed payment terms. Seller will use commercially reasonable efforts to deliver the Goods on the agreed delivery date, or as soon as feasible thereafter. Delivery dates are subject to Force Majeure events or other causes beyond Seller’s reasonable control. Seller’s obligations shall be extended by the period of any Force Majeure event delay. Seller assumes no liability for damages resulting from such delay. If a Force Majeure delay extends beyond ninety (90) days without agreement on revised terms, either party may terminate the unexecuted portion upon thirty (30) days’ written notice.

9. STORAGE. If Buyer requests a shipment date beyond the agreed date shown on the Acknowledgement, Seller may approve at sole discretion. Upon approval, Seller will invoice Buyer for the goods and store them at a location of Seller’s choosing. Buyer agrees to pay all storage fees in accordance with the Seller’s Build, Bill, Hold, and Insurance Agreement.

10. CANCELLATION. Buyer may cancel an order within 5 business days of placement without fees or liability (the “Buyer’s Cancellation Period”). After the Buyer’s Cancellation Period, cancellations are at the Seller’s discretion and will be noted with written consent and payment as follows:

• • (a) Before production begins: 25% of total order value.
  • (b) After production begins: 75% of total order value.
  • (c) Completed Custom Goods: 100% of total order value.
  • Buyer must take possession and arrange shipment from Seller’s property within thirty (30) calendar days.  If Goods have not been removed from Seller’s property or moved, Goods will be deemed abandoned and become the property of Seller. Where third-party, long-lead, or special-order items are required, restocking charges apply when Seller cancels the order. Cancellation charges are due within fifteen (15) days of Seller’s statement.

11. SHIPMENT AND DELIVERY. Per the Acknowledgement, goods will be delivered to Buyer’s specified site. If Buyer does not provide their own carrier, or specific carrier shipping instructions, Seller will choose the method and carrier at its discretion. Buyer is responsible for all shipping costs unless Seller states otherwise. No discounts apply to freight charges. Buyer must provide all delivery information Seller needs to proceed without delay. If goods are delivered in installments, a failure or dispute involving any installment does not entitle Buyer to cancel the contract or remaining orders.

12. TRANSIT RESPONSIBILITY. Risk of loss during transit passes to the carrier upon loading at the Seller’s location. Buyer must inspect all goods upon arrival, before unloading. Once unloaded, the goods and any damage are Buyer’s responsibility.  For Seller-arranged freight, Seller will coordinate freight claims for damaged goods and potential back-charges with carrier. For Buyer-arranged freight, Buyer will coordinate freight claims for damaged goods and potential back charges with carriers.

13. TITLE, RISK OF LOSS, AND SECURITY INTEREST. Goods held under a Seller Build, Bill, Hold, and Insurance Agreement remain Seller’s property. Seller will maintain inventory insurance at the sale price for the duration of the agreement and will provide an Evidence of Property Insurance certificate upon request. If Buyer arranges transportation, title to and risk of loss for the Goods pass to Buyer when the Goods are loaded onto the Buyer’s carrier at Seller’s facility. If Seller arranges transportation, ownership transfers in the state where delivery occurs. Seller retains a security interest in the Goods until paid in full. Buyer agrees to take any actions needed to secure Seller’s interest, maintain the goods in reasonable condition, and not sell or transfer any portion without Seller’s prior written consent and full payment. Seller retains and Buyer grants a Security Interest in the Goods until paid in full and all obligations are satisfied. Buyer shall execute any instruments or agreements Seller reasonably requests to secure, protect, perfect, or enforce the Security Interest. Seller has all rights of a secured party under the Uniform Commercial Code (“UCC”). Upon Buyer’s default, Seller may exercise all UCC rights and remedies for a secured party on default. All goods remain personal property until installed or affixed to property. Upon default, Seller may repossess uninstalled goods or file a mechanic’s lien pursuant to Missouri Revised Statutes for installed goods. Buyer, by submitting an order, agrees to mechanic’s lien procedures under Missouri law.

14. HANDLING, TESTING AND INSTALLATION – CAUTION. Buyer acknowledges the potential hazards involved in handling, testing, and installing the goods. Buyer shall indemnify Seller against, and Seller shall not be liable for any loss or injury sustained by Buyer, its employees, agents, representatives, contractors, or installation personnel in connection with the handling, testing or installation of the goods.

15. INSURANCE. Each party agrees to carry insurance (or qualified self-insurance) of at least equal amounts to support indemnity obligations. A Certificate of Insurance (“COI”) shall be furnished upon written request.

• • Seller’s General Liability coverage:
  • (1) $1,000,000 per Occurrence.
  • (2) $2,000,000 General Aggregate.
  • (3) $5,000,000 Umbrella.
  • (4) $1,000,000 Products or Completed Operations.
  • Available amendments:
  • (5) Additional Insured Endorsement; (6) cancellation notice of 30+ days; (7) waiver of subrogation; (8) higher limits.

16. WARRANTY. Seller warrants products and services in accordance with its applicable Limited Warranty, available upon request. This warranty is VOID unless Buyer pays in full, installs and maintains goods according to the Seller’s published instructions. No employee, agent, or representative of Seller may alter or enlarge the warranty.

17. SPECIFIC NON-LIABILITY AND LIMITATIONS OF LIABILITY. Neither party shall be liable to the other for any indirect, special, punitive, exemplary, or consequential damages or losses, including damages for lost production, revenue, profit, business, or business opportunities.

• • Seller shall not be liable for:
    • (a) Consequential, indirect, incidental, punitive, or exemplary damages, including lost profits, environmental damage, remediation claims, lost production, revenue, or business opportunities;
    • (b) Conditions caused by fair wear, abnormal use, accident, neglect, or misuse;
    • (c) Damage from abrasive materials, unauthorized fluid storage, mishandling, improper installation, or unauthorized modifications/repairs;
    • (d) Excavation, testing, or product removal costs.
  • Seller’s total liability shall not exceed the value of Buyer’s goods. No liability attaches until the Goods giving rise to the claim have been paid in full.

18. INDEMNITY. Buyer agrees to defend, indemnify, and hold harmless Seller and its affiliates, subsidiaries, officers, agents, and employees from all loss, cost, damage, expense, or liability arising out of: (i) damage to Buyer’s property or bodily injury (including death) caused by or arising out of the goods furnished hereunder; and (ii) Buyer’s use of the goods or non-compliance with applicable laws, regulations, or orders. The foregoing indemnities are enforceable notwithstanding any statute or directive that would limit indemnities because of the negligence or fault of any indemnified party, subject only to limitations imposed by applicable law or public policy.

19. INTELLECTUAL PROPERTY, CONFIDENTIALITY, AND PATENTS. Based on an NDA agreement in place, or not, Seller retains all proprietary rights to designs, engineering details, drawings, specifications, and data related to the Goods. Buyer may retain copies solely for use with goods purchased under this agreement but shall not duplicate Goods or disclose them to third parties without Seller’s written permission. Buyer shall not disassemble, decompile, or reverse engineer any Seller product or component. All non-public information, including pricing, discounts, and negotiated terms, is confidential and shall not be divulged by Buyer or its personnel. Buyer is liable for any breach by its employees, agents, or contractors. Each party shall: (i) maintain Confidential Information in strict confidence; (ii) use it only for purposes of this agreement; (iii) limit dissemination to personnel with a need to know; (iv) not disclose to third parties without prior written consent; and (v) promptly notify the other party of any unauthorized disclosure.

• • Trademarks:
  • Nothing herein grants Buyer or Buyer’s customers a license to use any trademark, service mark, or proprietary mark of Seller.
  • Patent Infringements:
  • Buyer shall, at its expense, defend, indemnify, and hold Seller harmless from patent infringement claims arising from goods manufactured to Buyer’s designs. Buyer shall have exclusive control of the defense. All parties may be represented by counsel at their own expense. Seller shall not be bound by any settlement without its written consent. Seller shall not be liable for collateral, incidental, or consequential damages from patent infringement. If infringement is alleged prior to delivery, Seller may refuse to ship the allegedly infringing goods, and such refusal shall not constitute breach.

20. THIRD PARTIES AND ASSIGNMENT. These terms apply only between Seller and Buyer. Seller shall not be bound by any agreement Buyer may have with third parties unless Seller consents in writing. Neither Buyer nor Buyer’s customer may assign any right or delegate any duty without Seller’s prior written consent. Unauthorized assignments are null and void. Permitted assignment does not relieve Buyer of its obligations.

21. COMPLIANCE WITH LAWS AND REGULATORY COMPLIANCE. Seller will endeavor to comply with applicable occupational health and safety laws in manufacturing its equipment. Seller assumes no responsibility for Buyer’s improper installation, use, or operation of the equipment. Buyers shall comply with all applicable laws and regulations related to the Order, including those pertaining to trade embargoes, economic sanctions, export control, anti-boycott, cargo security, import classification, and country of origin marking. Both parties shall conduct operations in accordance with all applicable laws, and anti-corruption laws.

22. DISCLAIMERS, STATEMENTS, AND RECOMMENDATIONS. Any statement, recommendation, or assistance given by Seller shall not constitute a waiver of any provision or affect Seller’s liability. Buyer acknowledges approving, prior to fabrication, all construction drawings, designs, specifications, orientation, and dimensions. Seller’s furnishing of design information or field supervision does not constitute acceptance of Buyer’s design or a guarantee of performance.

23. AGREEMENT NOT TO SOLICIT. Through the later of Buyer’s final payment or one (1) year following Seller’s receipt of final payment, Buyer agrees not to, without Seller’s prior written consent, directly or indirectly: (i) employ, solicit, or engage any of Seller’s employees, agents, subcontractors, vendors, or personnel; or (ii) pursue a working relationship with any subcontractors, vendors, or suppliers of Seller that provided products or services included in deliverables to Buyer.

24. DISPUTES AND GOVERNING LAW. In the event of any dispute, the parties shall first attempt settlement within thirty (30) days. If settlement is not reached, either party may refer the dispute to the courts of the State of Missouri. This agreement is governed by the laws of the State of Missouri. Buyer consents to exclusive venue in Camden County, Missouri.

25. If any provision of this agreement is held inconsistent with or contrary to applicable law, it shall be modified to the minimum extent required to comply, and the remainder of this agreement shall remain in full force and effect.

Rev. 09/26