Terms & Conditions
1. Contract Formation, Purchase Order Acceptance: These terms and conditions are incorporated by reference into Purchase Orders (PO) issued by Foley Equipment Company or its affiliated companies (Foley) for purchase of Goods or Services specified in Foley’s PO. Supplier may acknowledge receipt of the PO with any form Supplier normally issues, provided such acknowledgement shall have no effect on the terms of the PO. Supplier’s commencement of work or acceptance of payment under the PO constitutes acceptance of these terms and conditions. Foley will not be bound by any additional or different terms or conditions of sale proposed by Supplier in any document issued by Supplier.
2. Pricing & Payment: Price is as specified in Foley’s PO. Payment terms will be Net 45 days from invoice unless otherwise specified on Foley’s PO.
3. Shipping Instructions: Supplier is responsible for proper preparation and packaging of Goods for shipment. No added charges are allowed for packing, crating, freight or any other services unless specified in Foley’s PO. Unless otherwise noted on the PO, all Goods will be shipped by Supplier FCA (Incoterms 2010) to Foley’s location noted on the PO.
4. Delivery, Notice Of Delay, Acceptance & Rejection
(a) Title and risk of loss will pass to Foley upon delivery of the Goods to Foley at the destination by the delivery date noted on the PO.
(b) Foley reserves the right to refuse or return at Supplier's risk and expense shipments made in excess of Foley’s orders or in advance of required schedules, or to defer payment on advance deliveries until scheduled delivery dates. Time is of the essence for all deliveries and performance by Supplier.
(c) In the event of an actual, potential or threat of delay to the delivery schedule, Supplier will: (i) notify Foley in writing immediately of the reasons for the delay; (ii) provide Foley a written plan to correct the delay within (5) calendar days; and (iii) if requested by Foley, expedite shipping to avoid or minimize delay. Supplier is responsible for the added cost of any expedited shipment. If delivery dates are not met, or Goods delivered require repair or rework before acceptance by Foley’s end customer, Supplier will bear any damages Foley is obligated to pay as a result of such failure to perform.
(d) Any Goods or Services which are nonconforming as to the quality, quantity or delivery schedule will be a PO breach and Foley will have the right to reject such Goods or Services, in whole or in part. Such defective tender will entitle Foley to all remedies provided by law in addition to the right to the following: (1) hold nonconforming Goods for a reasonable period at Supplier's risk and expense pending a determination to accept or reject; (2) return nonconforming Goods to Supplier for replacement or correction at Foley’s election and Supplier's risk and expense; (3) accept nonconforming Goods or Services subject to an equitable price reduction; (4) replace or correct nonconforming Goods or Services and charge Supplier the cost incurred by Foley; (5) recover by offset or otherwise all damages suffered by Foley as a result of nonconforming Goods or Services; or (6) terminate the affected PO and any other PO not yet performed as provided in paragraph 6 hereof.
5. Termination for Convenience:
(a) By written notice Foley may direct Supplier to terminate a PO in whole or in part at any time and such termination will not be a default. In the event of a partial termination, Supplier is not excused from performance of the non-terminated work.
(b) In the event of Termination for Convenience, Supplier will be reimbursed for actual, reasonable and substantiated costs incurred prior to the date of termination, plus reasonable profit for work performed prior to termination. Foley may take immediate possession of all work performed hereunder upon notice of termination.
6. Termination for Default:
(a) Foley may terminate this PO or work under this PO, in whole or in part, for the breach of one or more of its terms and Supplier's failure to fully cure such breach within 10 calendar days following Foley’s notice to Supplier. Foley may terminate this PO immediately and without prior notice upon Supplier’s insolvency, filing of a petition of bankruptcy by or against Supplier, or Supplier making an assignment for the benefit of creditors. Foley may terminate this PO immediately and without prior notice if Supplier, or any of Supplier’s officers, directors, owners, partners, managers or supervisors are debarred, suspended, proposed for debarment or declared ineligible for award of contracts by any federal department or agency.
(b) Supplier's obligations under warranty, patent, indemnity and confidentiality provisions of this PO will survive termination.
7. Force Majeure: Except for Supplier’s subcontractor defaults, neither Foley nor Supplier will be liable for any failure to perform due to any cause beyond their reasonable control and without their fault or negligence ("Force Majeure"). If performance of one or more POs are adversely affected by a Force Majeure, the Party whose performance is affected will notify the other Party in writing and, at Foley’s option, the PO(s) will be completed with adjustments reasonably required or PO(s) may be terminated on a no-fault basis.
8. Disputes
(a) Any controversy or claim arising out of one or more POs or the breach thereof will be settled at Foley’s sole discretion either by submitting the claim to a court of competent jurisdiction or by binding arbitration before a single arbitrator in the state of Kansas, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon an arbitrator's award may be entered in any court having jurisdiction thereof. The PO and these terms will be construed under the laws of Kansas without resort to Kansas’s conflicts of law rules.
(b) Pending resolution or settlement of any dispute, Supplier will proceed diligently as directed by Foley with the performance of any PO.
9. Remedies
(a) Foley’s rights hereunder are in addition to Foley’s rights and remedies at law or in equity. Failure to enforce any right will not constitute a waiver of such right or any other rights.
(b) In no event will Supplier be entitled to anticipatory profits or special, multiple, punitive, incidental, or consequential damages arising from or relating to this Agreement or any PO or breach thereof.
10. Confidentiality: All specifications, information, data, drawings, software, and other items which are supplied by Foley or obtained by Supplier and paid for by Foley for performance of a PO will be confidential. Supplier will not disclose this information to any third party (except Supplier's attorneys, financial institutions, and accountants) without Foley’s prior written consent. Supplier will not make any news release about the subject matter of any PO or use Foley’s name, logo, trademark, service mark, or trade dress without Foley’s prior written approval.
11. Warranty
(a) Supplier warrants the Goods delivered or the Services rendered shall: (i) be suitable for the use intended; (ii) meet the specifications and technical requirements for the Goods or Services; (iii) be free from defects in design; and (iv) be free from defects in material or workmanship. These warranties shall survive final acceptance and payment.
(b) Unless otherwise provided in the PO, Warranty shall start at the delivery of Goods to Foley or performance of Services and apply to defects becoming apparent within 12 months following delivery of the Goods to Foley or for Services, defects occurring within 12 months of completion of Services.
(c) Supplier shall be liable for, and save Foley harmless from, any loss, damage, cost, or expense that Foley may suffer from the breach of any of these warranties, including replacement, if Foley so elects, of non-conforming Goods or Services.
(d) These warranties extend to Foley’s customers and their respective successors and assigns without need for formal assignment.
12. Inspection: Prior to delivery to Foley, Supplier will inspect and test all Goods delivered or Services rendered to ensure compliance to all requirements for the Goods or Services. All Goods delivered or Services rendered will be subject to inspection and testing by Foley or Foley’s customers at Foley’s discretion before, during performance and after delivery. Such inspection or testing will not constitute acceptance of the Goods delivered or Services rendered nor does failure to inspect relieve Supplier of any duty to fully perform.
13. Changes: Foley will have the right by written order to suspend work or to make changes from time to time in the Goods, Services or delivery dates. If changes cause an increase or decrease in the cost of performance or the performance time, an equitable adjustment will be negotiated and the PO will be modified accordingly. Any Supplier claim for adjustment must be asserted in writing within 5 calendar days from notice of the change or suspension and will be followed as soon as practicable with specification of the amount claimed and supporting cost figures. Nothing herein will excuse the Supplier from proceeding with the PO as changed pending resolution of the claim.
14. Patents: Supplier warrants that the sale, use, or incorporation into manufactured products of all machines, parts, components, Services, devices, materials, Goods and rights furnished or licensed hereunder which are not of Foley’s design, composition, or manufacture will be free and clear of alleged infringement of any valid patent, copyright, trade mark or other proprietary rights. Supplier will save Foley and its customers harmless from any and all expenses, liability, costs and loss of any kind (including all attorneys' fees) arising out of claims, suits, or actions alleging such infringement.
15. Taxes: The price includes, and Supplier is liable for and will pay, all taxes and charges imposed on or measured for the Goods or Services specified on a PO except for applicable sales and use taxes that are separately stated on Supplier’s invoice. Prices will not include any taxes or charges for which Foley has furnished a valid exemption certificate or other exemption evidence.
16. Assignments: Supplier may not assign any rights or obligations due or to become due under a PO without the prior written consent of Foley.
17. Compliance with Law
(a) Supplier shall abide by regulations that prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, national origin or sexual orientation. Such regulations may further require affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability as required by 41 CFR §§ 60-1.4(a), 60-4.3(a), 60-300.5(a) and 60-741.5(a)., Executive Order 11246 and 41CFR60-250.4, all of which are incorporated by reference into the Purchase Order.
(b) Supplier will ensure that all goods comply with import and export control requirements.
(c) Supplier certifies that all Goods delivered and Services rendered under this PO conform with applicable OSHA requirements.
(d) Supplier certifies that in the performance of any PO, it will comply with all applicable U.S. Department of Transportation regulations on hazardous materials and any other pertinent federal, state, or local statutes, laws, rules, or regulations; and Supplier further agrees to save Foley harmless from any loss, or expense that Foley may suffer as a result of Supplier's failure to comply with this certification.
18. Insurance & Indemnification
(a) At all times Supplier and it’s vendors will maintain insurance coverage with at least the following amounts of insurance coverage, and will provide to Foley an insurance certificate showing proof of coverage of such insurance prior to the work:
A. General Liability $2 million per occurrence $4 million aggregate
B. Auto Liability $1 million combined single limit
C. Workers’ Comp. $500,000 each accident/each employee
D. Professional Liability/E&O Insurance (if design or other applicable scope of work) $1 million per occurrence minimum
The amount, terms and conditions of the insurance required by this PO must be acceptable to Foley. Supplier will, on demand, furnish Foley a Certificate of Insurance evidencing such insurance, endorsed to provide that such insurance may not be canceled or materially modified except on 30 days prior written notice to Foley. Supplier agrees to abide by all terms and conditions of said insurance. Supplier, its agents and employees will cooperate fully with Foley and Supplier’s insurer in an investigation, prosecution or defense of any claim or suit arising therefrom and will do nothing to impair or invalidate the applicable insurance coverage. Neither Foley’s acceptance of Supplier’s Certificates of Insurance nor Supplier’s failure to provide a Certificate of Insurance will be deemed a waiver, limitation or modification of Supplier’s insurance, indemnity or other obligations under this PO or Supplier’s liability hereunder. Supplier agrees to assign any and all proceeds from such insurance to Foley. Customer agrees that subrogation will be waived against Foley and its insurers in all policies of Supplier's insurance, and that Supplier’s insurance will be primary and not seek contribution from Foley. In addition, Foley should be listed as an “Additional Insured” on the general (for both ongoing and products/completed operations) and auto liability policies. Supplier must maintain the Professional Liability/ E&O insurance policy for at least three years after completion of the work or such longer term as may be specified in the applicable PO.
(b) Supplier will defend, indemnify, and hold harmless Foley, Foley’s customers and their respective directors, officers, employees an agents from any liability, claim, expense, cause of action, or damage whatsoever, including attorney's fees arising out of Supplier's or Supplier's agents, employees, or subcontractors performance or failure to perform any PO as well as all alleged claims which may be asserted against Goods or Services covered under any PO, including without limitation all claims for injury to persons or property arising out of or related to such Goods or Services unless the same are caused solely and directly by Foley’s negligence.
(c) Supplier does hereby irrevocably indemnify and agree to defend any claim or litigation, or to pay or reimburse any judgment and all loss and expense costs (including reasonable attorney fees) incurred in connection with any claim or litigation which asserts or is based upon any alleged design or manufacturing defect, negligence, failure to warn, or breach of warranty related to Supplier's Goods or Services (including parts and components thereof purchased by Supplier from its suppliers), delivered to Foley.
19. Waiver and Severability: The failure of either Party to enforce at any time any of the provisions of this Agreement or a PO will not be construed to be a waiver of such provisions, nor affect the validity of any PO, nor the right of the said Party thereafter to enforce each and every such provision.
If any provision of any PO is found invalid, illegal or unenforceable by law, the remainder of the PO will remain valid and in full force and effect, and the Parties will negotiate in good faith to substitute a provision of like economic intent and effect.
20. Electronic Signature or Acknowledgement, Counterparts & Photocopies: The Parties agree that a photocopy or electronic scan of the PO shall have the same effect as an original. Any signatures may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same agreement.
21. Entire Agreement: These terms and conditions, along with the PO and any mandatory flow down provisions from Foley’s customer contain the entire agreement of the parties and supersede any and all prior agreements between the parties with respect to the PO transaction. There are no verbal agreements, representations or warranties between the parties which are not expressly set forth herein.
Rev/06/04/2025