The following Custom Fabricated Standard Terms and Conditions (“Terms and Conditions”) govern the sale of the custom fabricated goods (“Custom Fabricated Products”) and any related fabrication services (“Services”) identified in an applicable Custom Fabricated Products Quote (“Quote”), along with any renderings and will be incorporated into an applicable Fifty/50 FabShop Custom Fabricated Products Agreement (“Agreement”). The Fifty/50 FabShop, a division of GMR Marketing LLC (“Fifty/50 FabShop”) and the customer identified on an applicable Quote (“Customer”), agree to the Terms and Conditions outlined herein. The Custom Fabricated Products and Services outlined in an applicable Quote are provided on a fixed-price basis.
Payment Terms: Unless otherwise stated in the applicable Quote, the price for Custom Fabricated Products and Services will be invoiced as a fixed price. Shipping, travel, and any on-site third-party services will be billed separately at cost. Fifty percent (50%) of the price for purchased Custom Fabricated Products and Services is due upon signing of the applicable Quote and is non-refundable. The remaining balance is due upon completion of the Custom Fabricated Products and Services. All invoices are payable net ten (10) days from the date of invoice. Invoiced amounts not paid within ten (10) days of the due date, Fifty/50 FabShop may (a) charge interest on unpaid amounts at a rate of 2% per month, and (b) suspend performance for delivery of all Custom Fabricated Products and Services until payment has been made in full.
Price: Prices for the Custom Fabricated Products and Services are valid for a period of thirty (30) days from quotation unless otherwise stated in the applicable Quote. All prices are based on the cost of materials, equipment, labor and subcontracted Services as of the date of quotation and subject to any assumptions, specifications, volumes or exclusions listed in the Quote. Fifty/50 FabShop may adjust pricing at any time based upon unanticipated increases in the cost of equipment, material, labor or subcontracted Services as of the date of fabrication or installation.
Taxes: Customer is responsible for all sales, use, value added and any other taxes applicable to the Custom Fabricated Products and Services. Fifty/50 FabShop will invoice all taxes due by Customer.
Schedule: Customer understands and accepts that Fifty/50 FabShop’s performance may be subject to circumstances beyond Fifty/50 FabShop’s control, including, without limitation, the availability, production and delivery of Custom Fabricated Products, components and materials by any third party. Fifty/50 FabShop shall use commercially reasonable efforts to meet all performance dates, provided, however, any installation, delivery or other performance dates in a Quote or proposal are non-binding estimates only. Fifty/50 FabShop is not obligated to incur premium, overtime or extra costs to meet any specified performance dates without additional payment from Customer for such charges.
Changes: Upon seven (7) business days notice after receipt of Quote from Fifty/50 FabShop, Customer may make changes within the scope of the Quote. All notices of changes must be made in writing (email constitutes sufficient written notice if provided to and confirmed in writing by the Fifty/50 FabShop point of contact for the project listed in the Quote). If a change notice from Customer will result in either an increase or decrease in Fifty/50 FabShop’s cost or time required for performance of any of the Custom Fabricated Products or Services, Fifty/50 FabShop will provide the Customer with such revised pricing and schedule and upon approval from the Customer (including email meeting the requirements above), the prices and delivery and installation schedules will be adjusted to appropriately reflect such change. A follow-up change order will be provided by Fifty/50 FabShop to Customer reflecting all agreed upon changes and costs associated with the applicable changes. Any increase in price due to such change will either be invoiced upon Customer’s agreement to the price change and due upon receipt or added to the final invoice for the work, at Fifty/50 FabShop’s discretion. Any change resulting in a material reduction in the scope of work will be treated as a cancellation. No changes can be made by Customer on an agreed upon Quote less than fourteen (14) days prior to shipping of the applicable Custom Fabricated Products, without prior written approval by Fifty/50 FabShop.
Cancellation: Cancellation of an Order by Customer will be subject to a cancellation charge calculated as follows: 50% of the order price for any cancellation after signing of the Order but more than four (4) weeks prior to the estimated ship date; 75% of the order price for any cancellation between four (4) weeks and two (2) weeks of the estimated ship date: and 100% of the order price for any cancellation made less than two (2) weeks prior to the estimated ship date. All cancellation charges will be invoiced immediately upon cancellation and due upon receipt of invoice.
Use of Third Party Subcontractors: It is expressly understood and agreed that, while Fifty/50 FabShop shall at all times exercise supervision over all aspects of the development and creation of the Custom Fabricated Products, Fifty/50 FabShop may contract with third parties to complete ancillary aspects of the Services, in Fifty/50 FabShop's sole discretion.
Warranty: Fifty/50 FabShop warrants to Customer, subject to the terms hereof, that the Custom Fabricated Products provided by Fifty/50 FabShop will be free from material defects under normal use and service for a period of ninety (90) days from the date of delivery to Customer. This warranty applies only to materials originally produced or fabricated by Fifty/50 FabShop and does not apply to any third-party materials, for which Fifty/50 FabShop makes no warranty or representation. Fifty/50 FabShop will, to the extent allowed, pass through any applicable third-party warranties to Customer. The warranty provided by Fifty/50 FabShop is not transferable by Customer to any third party. Fifty/50 FabShop shall not be liable for a breach of the warranty unless Customer gives written notice of the defective Custom Fabricated Products, reasonably described, to Fifty/50 FabShop within thirty (30) days of the time when Customer discovers or ought to have discovered that the Custom Fabricated Products were defective. Subject to this Section, Fifty/50 FabShop shall, in its sole discretion, either: (i) repair or replace such Custom Fabricated Products; or (ii) credit or refund the price of such Custom Fabricated Products. THE REMEDIES SET FORTH IN THIS SECTION SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND FIFTY/50 FABSHOP’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTY SET FORTH IN THIS SECTION.
The warranty does not apply to any negligent, reckless, or intentional alteration, misapplication, misuse or abuse by any person or entity. The warranty does not apply to damage or wear and tear resulting from normal use and service, including damage caused by transportation, packing or handling of Custom Fabricated Products.
Disclaimer of Warranties: EXCEPT FOR THE WARRANTY SET FORTH ABOVE, FIFTY/50 FABSHOP MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE CUSTOM FABRICIATION PRODUCTS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. WITH RESPECT TO THE CUSTOM FABRICIATION PRODUCTS, ANY WARRANTY, REPRESENTATION OR COVENANT OR INDEMNIFICATION OBLIGATION IN ANY AGREEMENT BETWEEN CUSTOMER AND FIFTY/50 FABSHOP REGARDING INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND IS EXPRESSLY WAIVED AND NULL AND VOID.
Limitation of Liability: FIFTY/50 FABSHOP WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LABOR COSTS, MATERIAL COSTS, OR PENALTIES ARISING FROM THE SALE, USE OR INSTALLATION OF THE CUSTOM FABRICIATION PRODUCTS, FROM ANY BREACH OF THIS CONTRACT OR WARRANTY (EXPRESSED OR IMPLIED) OR OTHERWISE BASED ON CONTRACT, AND REGARDLESS OF ANY ADVICE OR REPRESENTATIONS THAT MAY HAVE BEEN RENDERED BY FIFTY/50 FABSHOP CONCERNING THE SALE, USE OR INSTALLATION OF THE CUSTOM FABRICIATION PRODUCTS. IN ADDITION, IN NO EVENT WILL FIFTY/50 FABSHOP BE LIABLE IN CONNECTION WITH THE CUSTOM FABRICIATION PRODUCTS OR SERVICES SUBJECT TO THESE TERMS IN AN AMOUNT THAT EXCEEDS THE PAYMENTS FIFTY/50 FABSHOP HAS RECEIVED FOR THE CUSTOM FABRICIATION PRODUCTS SOLD AND SERVICES PERFORMED PURSUANT TO THESE TERMS AND CONDITIONS.
Confidentiality: Fifty/50 FabShop shall regard as confidential and proprietary all information conspicuously marked CONFIDENTIAL which is communicated to it by the Customer in connection with an applicable Quote. The foregoing notwithstanding, Fifty/50 FabShop's obligation pursuant to the above shall not apply to (a) information that, at the time of disclosure, is, or after disclosure becomes part of, the public domain other than as a consequence of Fifty/50 FabShop's breach, (b) information that was known or otherwise available to Fifty/50 FabShop prior to the disclosure by Customer, (c) information disclosed by a third party to Fifty/50 FabShop after the disclosure by Customer, if such third party's disclosure neither violates any obligation of the third party to Customer nor is a consequence of Fifty/50 FabShop's breach, or (d) information that Customer authorizes, in writing, for release. In addition, neither Fifty/50 FabShop nor Customer shall disclose to any third party the terms or conditions of this Agreement.
Ownership of Intellectual Property:
Subject to subsection (c) below, Customer shall have all right, title, and interest in the Customer Fabricated Products. Notwithstanding the foregoing, if any pre-existing third party copyright or trademark rights are embodied or reflected in any materials, Fifty/50 FabShop agrees to procure for Customer the appropriate license to use such pre-existing rights to the extent necessary for Customer to fully exploit and use the materials for the intended purposes. Customer agrees to use such materials in accordance with and subject to any license terms.
In the event Customer’s intellectual property assets are incorporated into the Custom Fabricated Products, Customer hereby grants Fifty/50 FabShop a limited license to use such assets in connection with the Custom Fabricated Products.
Notwithstanding anything to the contrary herein, Fifty/50 FabShop retains all right, title and interest in and to (i) all materials, equipment, drawings, software, notes, marketing processes, business know-how, business methods, business concepts or practices and similar intellectual property or data preexisting or developed by Fifty/50 FabShop independently, and (ii) any software, application, code, material or similar intellectual property that is developed by Fifty/50 FabShop for the Custom Fabricated Products and intended to be provided under license to Customer as indicated in the applicable Quote ( collectively, “Fifty/50 FabShop IP”). If Fifty/50 FabShop incorporates Fifty/50 FabShop IP into any materials provided as part of the Custom Fabricated Products, Customer is hereby granted and shall have a nonexclusive, royalty free, perpetual, irrevocable, worldwide license, including the right to make, have made, use, import, modify, reproduce, have reproduced, perform and display, such Fifty/50 FabShop IP as part of or in connection with the intended use as set forth in an applicable Quote.
Subject to Customer’s rights described herein, and the confidentiality obligations of this Agreement, no provision of this Agreement shall be construed to prohibit Fifty/50 FabShop from creating customized products or services for other parties that are the same general format, rely on the same procedures or arise out of services provided to another party that are the same as or similar to the Services provided to Customer, and Fifty/50 FabShop retains all right to develop, use and market products and services substantially similar to the Services provided to Customer.
Right to Reference Work: Fifty/50 FabShop will be entitled to reference name and logo of Customer and the Services provided by Fifty/50 FabShop to Customer under an applicable Quote for Fifty/50 FabShop’s promotional purposes, including reference on Fifty/50 FabShop’s web site and promotional materials. Such reference will not include any proprietary information regarding any Services provided by Fifty/50 FabShop to Customer or any information subject to written confidentiality restrictions between Fifty/50 FabShop and Customer.
Force Majeure: Fifty/50 FabShop shall not be liable for loss, damage or delays resulting from causes beyond its reasonable control or caused by strikes or labor difficulties, lockouts, acts or omissions of any governmental authority or of Customer, insurrection, riot, war, fires, floods, acts of God, weather, breakdown of essential machinery, accidents, embargos, cargo or material shortages, delays in transportation, or inability to obtain labor, materials or parts from usual sources. In the event of any such delay, performance shall be postponed by such length of time as may be reasonably necessary to compensate for the delay. In the event performance by Fifty/50 FabShop cannot be accomplished by Fifty/50 FabShop due to any action of governmental agencies, or any laws, rules or regulations or the United States government, Fifty/50 FabShop may, at its option, cancel these Terms without liability.
Delay: If Fifty/50 FabShop’s performance of any obligation, schedule, milestone or specification in connection with the Custom Fabricated Products is prevented or delayed by an act or omission of Customer or its agents, subcontractors, consultants or employees, including delay or failure to provide approvals, materials or inputs where required or requested, Fifty/50 FabShop shall not be deemed in breach of its obligations under these terms or any other agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
Warehousing: From time to time, Customer may request Fifty/50 FabShop to store the Custom Fabricated Products or other inventory or equipment (collectively “Stored Materials”) to be used for future promotions or otherwise (“Storage Services”). If Fifty/50 FabShop agrees to undertake Storage Services, Fifty/50 FabShop agrees to segregate Customer’s Stored Materials from those of Fifty/50 FabShop’s other clients. Fifty/50 FabShop agrees to use reasonable care while performing Storage Services of Customer’s Stored Materials. Customer shall provide Fifty/50 FabShop a written description of any special requirements it may desire for the storage of Stored Materials prior to the undertaking of Fifty/50 FabShop of the respective Storage Services. Any other part of this Agreement notwithstanding, unless Customer first provides to Fifty/50 FabShop such written description of special requirements and Fifty/50 FabShop agrees to such special requirements, Fifty/50 FabShop shall not be held liable for the failure to observe any special requirements with regard to the Storage Services.
In return for Storage Services, Customer agrees to pay Fifty/50 FabShop, separate and in addition to any payment required hereunder or under any Statement of Work, the applicable storage fee as agreed to by the parties and set forth in a separate writing.
Storage Services shall terminate upon the termination of this Agreement, and also may be terminated by Customer upon the provision of written notice by Customer or by Fifty/50 FabShop by written notice for late payment of fees. Upon the termination of Storage Services, Customer shall provide to Fifty/50 FabShop written instructions for delivery of the Stored Materials to Customer. While Stored Materials remain in Fifty/50 FabShop’s control, Storage Service fees will be assessed for the Stored Materials until they are removed from storage or destroyed. If such written delivery instructions have not been received by Fifty/50 FabShop within thirty (30) days after the termination of the Storage Services, Customer shall be deemed to have abandoned the Stored Materials and Fifty/50 FabShop may dispose of the Stored Materials in any fashion, which may include destruction, at Fifty/50 FabShop’s sole discretion; provided that Fifty/50 FabShop shall retain any right it may have in the Stored Materials and may enforce such rights in accordance with applicable law. Customer shall be responsible for any costs associated with the disposal of the Stored Materials in accordance with this Paragraph.
Governing Law/Venue: Any Agreements entered between Fifty/50 FabShop and Customer shall be governed by, construed and interpreted in accordance with the internal laws of the State of Wisconsin, without regard to its choice of law provisions. The jurisdiction and venue of all matters relating to an applicable Agreement shall be vested exclusively in the Federal, state and local courts within the State of Wisconsin.