All sales by Forwal Construction LLC, a Michigan limited liability company, are subject to these terms and conditions:

1 – Acceptance and Acknowledgement of Terms and Conditions of Sale.

These Terms and Conditions of Sale (“Terms and Conditions”) apply to all sales of products, parts, supplies, materials, or other property (“Products”) and to the performance of all work, labor, or services including design, construction, or repair work (“Services”) from Forwal Construction LLC (“Forwal Construction”) to or for Buyer.  Buyer agrees that these Terms and Conditions are incorporated by reference in and apply to every sale, purchase, request for proposal or quotation, specification, quotation, purchase order, invoice, release, requisition, work order, shipping instruction, shipping receipt or communication between Forwal Construction and Buyer, whether expressed verbally, in written form, or electronically.  All sales of Products and Services from Forwal Construction to Buyer are subject to these Terms and Conditions.

2 – Binding Nature

(a) All orders placed with Forwal Construction shall only be accepted subject to these Terms and Conditions. Buyer is immediately bound by these Terms and Conditions and will be considered to have accepted them at such time as Buyer places an order for Products or Services, signs any quote, pays any required deposit, and/or accepts Products or Services from Forwal Construction or its subcontractors.

(b)  Forwal Construction may at any time modify or amend these Terms and Conditions after Buyer has placed an order with Forwal Construction and the modified or amended Terms and Conditions shall then apply to Buyer after Forwal Construction so notifies Buyer of the modification or amendment.

(c) Any terms in Buyer’s communications, purchase orders, or confirmations that are inconsistent with these Terms and Conditions are expressly rejected and will not be binding on Forwal Construction. 

(d) By executing and delivering an order for Products or Services to Forwal Construction, Buyer represents that it is not insolvent as that term is defined in MCL Section 440.1201(2)(w) of Michigan’s Commercial Code.  If Buyer becomes insolvent before Forwal Construction’s delivery of any Products or Services, Buyer shall immediately notify Seller.  Buyer’s failure to- notify Forwal Construction of Buyer’s insolvency prior to delivery of any Products or Services shall be construed as an affirmative representation by Buyer that Buyer is solvent   at the time of delivery.

3 – Pricing

(a) If there is any error or omission in any quote provided by Forwal Construction to Buyer, Forwal Construction reserves the right to change the contract sum on the quote, even if the quote has already been accepted by Buyer. Prices quoted by Forwal Construction are subject to final costing assessment by Forwal Construction.

(b) Upon acceptance of a quote from Forwal Construction by Buyer, Forwal Construction may require a deposit to be paid prior to any Products or Services being provided to Buyer. The amount and terms of a deposit will be at the sole discretion of Forwal Construction. At Forwal Construction’ sole discretion, a portion of or the full amount of the deposit may be non-refundable. The amount that is non-refundable will be a true estimate of costs and expenses incurred by Forwal Construction to date. 

(c) Notwithstanding any other provision in a quote from Forwal Construction or these Terms and Conditions, the contract sum on a quote from Forwal Construction will only be valid for 30 days from the date of the quotation. Forwal Construction reserves the right to make any changes to a quote if more than 30 days elapses from the date of submission of a quote to Buyer

(d) Forwal Construction reserves the right to make any changes to its quotes including, but not limited to, the contract sum if either: (i) a variation is requested by Buyer, or (ii) a quote has not been accepted or fulfilled within 30 days of the date the quote was provided to Buyer through no fault of Forwal Construction. Any variation initiated by Buyer from a quote, schedule of work, or any specifications will allow Forwal Construction the right to stop the delivery of Products or Services until Forwal Construction and Buyer agree to changes to account for the variation. Payment for all variations must be made in full at the time which they are initiated by Buyer.

(e) After Buyer accepts, in writing, a quote from Forwal Construction, Buyer may not cancel the resulting order unless Forwal Construction agrees in writing and the resulting order will be fully bound by these Terms and Conditions. Forwal Construction reserves the right to supply an order in full or only in part.

4 – Terms of Payment

(a) Except as otherwise provided in these Terms and Conditions, Buyer will make full payment for all Products and Services to Forwal Construction immediately upon delivery of the Products or Services, without setoff, deduction, or other charges. 

(b) At Forwal Construction’ sole and absolute discretion, Forwal Construction may grant credit terms to Buyer, net 30 days of Forwal Construction’ invoice, but only upon Forwal Construction’ acceptance of a completed credit application, signed by Buyer and then accepted by Forwal Construction (in its sole and absolute discretion) in writing.  All sums not paid in cash on delivery shall be subject to a late charge at the rate of 1.5% per month from the date payment is due. Where the applicable state law prescribes a maximum legal interest rate or late charge which is less than 1.5% per month, then Buyer shall pay interest at the maximum amount allowed by law.  If it is necessary to place invoices relating to an order in the hands of an attorney for collection, Buyer shall pay Forwal Construction all its reasonable attorney’s fees and costs incurred in the course of collecting payment.  Granting Buyer credit, including all terms and conditions of the credit, shall be at the sole and absolute discretion of Forwal Construction.  

(c) To the extent permitted by applicable law, in the event Buyer elects to pay all or any portion of the total purchase price by credit card, Forwal Construction shall charge Buyer, and Buyer shall pay Forwal Construction, an additional amount equal to the transaction or processing fee incurred by Seller in connection with such credit card transaction.  The current fee structure is (i) four percent (4%) of the cost of the sale (including freight and taxes) will be charged to customers paying with American Express; and (ii) three percent (3%) of the cost of the sale (including freight and taxes) will be charged to customers paying with Visa, MasterCard, or Discover.  Seller reserves the right to modify which types of credit cards are accepted, including the right to cease acceptance of all credit card payments, and to modify the fee structure from time to time, with or without notice.  

(d) Buyer hereby grants Forwal Construction a security interest in the Products sold under Buyer’s order to secure any portion of the purchase price not paid at the time of delivery.  At the time of delivery of the Products, or at Forwal Construction’ request, Buyer shall execute a separate security agreement in such form as is reasonably required by Forwal Construction.  Buyer authorizes Forwal Construction to file a UCC Financing Statement to perfect Forwal Construction’ security interest in the Products.  

(e) If Buyer fails to make timely payment of any sums due Forwal Construction, then Forwal Construction may immediately cease providing any further Products or Services to Buyer and terminate any agreement in relation to Products or Services that have not then been provided or delivered to Buyer.

(f) Buyer shall not be entitled to set off against, or deduct from the contract sum, any sums owed or claimed to be owed to Buyer by Forwal Construction nor to withhold payment of any invoice because part of that invoice is in dispute.

(g) Taxes of any nature (including, without limitation, sales taxes) resulting from Forwal Construction’ sale of Products or Services to Buyer are Buyer’s sole responsibility.

5 – Completion Time; Force Majeure

(a) Any date or time quoted by Forwal Construction for delivery of the Products and/or completion of the Services is an estimate only. Forwal Construction shall use commercially reasonable efforts to timely complete the delivery of the Products and Services at a time or times required by Buyer, but failure to do so shall not confer any right of cancellation, termination, or refusal of delivery on Buyer’s part or render Forwal Construction liable for any loss or damages directly or indirectly sustained by Buyer as a result thereof.  

(b) Forwal Construction shall not be liable for any failure to perform its obligations to Buyer resulting directly or indirectly from or contributed to by acts of God, acts of Buyer, acts of civil or military authorities (including, without limitation, shut-down or stay-at-home orders), fires, strikes or other labor disputes, accidents, floods, epidemics, pandemics, war, riot, delays in transportation, lack or inability to obtain raw materials, components, labor, fuel or supplies, or other circumstances beyond Forwal Construction’s reasonable control (each, a “Force Majeure Event”). Buyer will not be relieved of any obligation to accept or pay for products by reason of any delay in delivery of Forwal Construction’ Products or Services on account of any Force Majeure Event.

(c) If the Products covered by an order placed by Buyer are destroyed prior to the time the risk of loss passes to the Buyer, Forwal Construction shall be excused from performing its obligation under the order and the contract shall be immediately considered void.  This provision shall apply whether the Products are destroyed through the acts of any third party, or through the negligence or any act of Forwal Construction.

(d) Whenever Forwal Construction in good faith has reason to question the Buyer’s intent or ability to perform, Forwal Construction may demand that Buyer give a written assurance of Buyer’s intent and ability to perform.  If a demand is made and no assurance is given by Buyer within five days, Forwal Construction may treat this failure as an anticipatory repudiation of this order by Buyer.

6 – Inspection

(a) Buyer shall examine the Products and Services delivered by Forwal Construction immediately after delivery and Forwal Construction shall not be liable for any mis-delivery, shortage, defect, or damage unless Forwal Construction receives details in writing from Buyer within 14 days of the date of delivery of the Products or Services, notifying Forwal Construction of any defects, nonconformance, or rejection of the Products or Services.  After the expiration of the 14-day period (without Buyer having notified Forwal Construction of any mis-delivery, shortage, defect, or damage), Buyer shall be considered to have accepted the Products and Services.

(b) If Forwal Construction is engaged to install any Products, Buyer shall not open, dismantle or otherwise handle the Products and Buyer shall have no right to reject the Products or Services for any reason or to otherwise revoke acceptance.

7 – Replacement Products 

If any Products specified within an order accepted by Forwal Construction are unavailable at the time of delivery, Forwal Construction in its absolute discretion may substitute a reasonable alternative.

8 – Warranties

(a) Forwal Construction warrants that if a defect in any Services carried out by Forwal Construction is reported to Forwal Construction within 12 months of the date of completion, then Forwal Construction’ sole obligation will be to remedy the Services provided.

(b) For Products delivered by Forwal Construction to Buyer, Forwal Construction will extend the same warranty it receives from manufacturer of the Products to Buyer, which warranty shall not extend beyond the terms and conditions of the warranty issued by the manufacturer.  The length of the warranty period will be the length established by the manufacturer of the Products.  At Forwal Construction’ request, Buyer shall proceed exclusively and directly against the manufacturer of the Products. In any event, components and parts from third party suppliers are subject to the same warranty (if any) as is extended to Forwal Construction by the supplier.

(c) If Forwal Construction replaces defective Products, ownership in those defective Products transfers wholly and unconditionally to Forwal Construction at the time the Products are replaced.

9 – Limited Warranty and Disclaimer of Implied Warranties

FORWAL CONSTRUCTION MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND EXPRESSLY DISCLAIMS SAME. NO EMPLOYEE OR AGENT OF FORWAL CONSTRUCTION IS AUTHORIZED TO OFFER ANY WARRANTY OR GUARANTY BEYOND THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS AND CONDITIONS.  NOTWITHSTANDING ANY OTHER PROVISION IN THESE TERMS AND CONDITIONS, FORWAL CONSTRUCTION ONLY WARRANTS TO BUYER THAT (A) THE PRODUCTS, AT THE TIME OF SHIPMENT, ARE COMMERCIALLY FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP AND ARE MATERIALLY IN ACCORD WITH THE SPECIFICATIONS SPECIFICALLY AGREED TO IN WRITING BY THE PARTIES HERETO, AND (B) THE SERVICES PROVIDED BY FORWAL CONSTRUCTION SHALL BE (I) PERFORMED BY PERSONNEL OF REQUIRED SKILL, EXPERIENCE AND QUALIFICATIONS AND IN A PROFESSIONAL AND WORKMANLIKE MANNER, IN ACCORDANCE WITH GENERALLY RECOGNIZED INDUSTRY STANDARDS FOR SIMILAR SERVICES, AND (II) THAT FORWAL CONSTRUCTION WILL DEVOTE ADEQUATE RESOURCES TO MEET ITS OBLIGATIONS TO BUYER. THE LIMITED EXPRESS WARRANTY SET FORTH HEREIN SHALL BE INEFFECTIVE AND SHALL NOT APPLY TO ANY PRODUCTS SOLD BY FORWAL CONSTRUCTION TO BUYER THAT HAVE BEEN SUBJECT TO ALTERATION OR REPAIR, MISUSE, ABUSE, NEGLECT, ACCIDENT, DAMAGE OR IMPROPER HANDLING, STORAGE, INSTALLATION OR MAINTENANCE.

10 – Waiver of Consequential Damages and Exclusive Remedy For Defective Goods or Services

In no event shall either party be liable to the other party for lost profits, lost revenue, consequential, incidental, exemplary, punitive, or special damages arising out of or connected with the sale, delivery, installation, or use of the Products or Services.  THE LIABILITY, IF ANY, OF FORWAL CONSTRUCTION AND ITS AGENTS AND EMPLOYEES, FOR ANY CLAIMS, COSTS, DAMAGES, LOSSES AND EXPENSES FOR WHICH THEY ARE OR MAY BE LEGALLY LIABLE, WHETHER ARISING IN NEGLIGENCE, TORT, CONTRACT, OR OTHERWISE, SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT OF THE PRODUCTS, COMPLETION OF THE SERVICES, OR REFUND OF THE PURCHASE PRICE PAID FOR THE GOODS OR SERVICES, AS DETERMINED IN FORWAL CONSTRUCTION’S SOLE DISCRETION.

11 – Invoice Disputes; Limitations on Causes of Action

(a) All invoice disputes must be submitted to Forwal Construction in writing within 30 days following the date of the invoice. Thereafter, absent written notice prior to the expiration of the 30-day period, Buyer waives any rights it may have to dispute the validity, existence, or amount of the invoice.

(b) Any cause of action Buyer may have with respect to the purchase of any Products or Services from Forwal Construction must be commenced within one year after Forwal Construction’s delivery of the Products or performance of the Services.

12 – Buyer’s Acknowledgements

(a) It is the sole responsibility of Buyer to check and confirm its order with Forwal Construction prior to signing a quote. Forwal Construction will not be held liable for incorrect orders.

(b) Buyer shall ensure that the Products and Services can be delivered by Forwal Construction to Buyer’s location without interruption, in a continuous workflow, and on the mutually agreed date. Forwal Construction reserves the right to charge Buyer any extra costs incurred by Forwal Construction by virtue of interruptions at Buyer’s location, including, but not limited to, additional return to site charges and travel costs. Buyer shall be fully responsible to ensure that utilities as needed for Forwal Construction to deliver the Products and Services at Buyer’s location are available to Forwal Construction (at Buyer’s expense).

(c) Buyer shall ensure that Forwal Construction has clear and free access to Buyer’s location at all times to enable it carry out the delivery and installation of the Products and Services. Forwal Construction shall take all due and reasonable care when delivering and installing the Products and Services in accordance with these Terms and Conditions; nevertheless, Forwal Construction shall not be liable for any loss or damage to Buyer’s worksite or designated location, except to the extent caused by Forwal Construction’s gross negligence or willful misconduct.

13 –  Termination

(a) Forwal Construction may immediately terminate any pending order from Buyer for Products or Services in the event of (i) a material breach by Buyer of any term of the order or these Terms and Conditions, including, without limitation, any failure of Buyer to make timely payment of any sum due Forwal Construction in connection with the order, (ii) Buyer’s breach of any representation or warranty to Forwal Construction, or (iii) the bankruptcy or insolvency of Buyer, including, without limitation, if Buyer (A) dissolves or becomes insolvent or bankrupt; (B) Buyer makes any assignment for the benefit of Buyer’s creditors, or (C) any bankruptcy, reorganization, insolvency, or similar proceeding is instituted by or against Buyer that is not dismissed within 30 days thereafter.

(b) In addition to exercising all or any of its rights against Buyer, Forwal Construction may suspend any further deliveries and immediately recover possession of any Products not paid for in accordance with the Terms and Conditions. Forwal Construction will not be liable for any loss or damage Buyer suffers as a result of Forwal Construction exercising its rights hereunder.

(c) If Buyer cancels or alters any order or part of an order for any Products at any time after Forwal Construction has accepted Buyer’s order, then Forwal Construction reserves the right to charge to Buyer the cost of any products or materials already acquired for the order, together with cost of labor and any fees for customization expended to the date of such cancellation or alteration.

14 – Privacy  

Buyer hereby agrees that Forwal Construction may contact any trade references or other credit references of Buyer at any time whether now or in the future for the purpose of assessing Buyer’s credit worthiness. In the event of Buyer’s default in payment of any of sums due Forwal Construction, Forwal Construction may disclose all information relating to Buyer’s account to its collection agency or attorneys for the purpose of recovering any or all amounts outstanding.

15 – General

(a) If any provisions of these Terms and Conditions are invalid or not enforceable in accordance with their terms, all other terms or parts of these Terms and Conditions that are capable of separate enforcement without regard to the invalid or unenforceable portion are, and will continue to be, valid and enforceable in accordance with their terms.

(b) These Terms and Conditions (and any order placed by Buyer with Forwal Construction) shall be governed by and construed in accordance with the laws of the State of Michigan.  Each party hereto hereby irrevocably submits to the jurisdiction of the courts of the State of Michigan in Oakland County and the United States District Court for the Eastern District of Michigan for the purposes of any proceeding arising out of or related to the Agreement, or the subject matter hereof or thereof, brought by any other party.  Provided, however, Forwal Construction has the option to file collection actions where Buyer is located.  Buyer hereby waives and agrees not to assert by way of motion as a defense or otherwise in any such proceeding, any claim (i) that it is not subject to the jurisdiction of the above-named courts, (ii) that the proceeding is brought in an inconvenient forum, (iii) that it is immune from any legal process with respect to itself or its property, (iv) that the venue of the proceeding is improper or (v) that the Agreement or the subject matter hereof or thereof may not be enforced in or by such courts.

(c) BUYER WAIVES ITS RIGHTS, IF ANY, TO A JURY TRIAL TO THE EXTENT PERMITTED BY APPLICABLE LAW WITH RESPECT TO ANY ACTION, CLAIM, SUIT, OR PROCEEDING ARISING OUT OF THESE TERMS AND CONDITIONS OF SALE TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW OR COURT RULE,

(d) The provisions of these Terms and Conditions (and any order placed by Buyer with Forwal Construction) shall be binding upon and shall inure to the benefit of the parties hereto and their heirs, assigns and successors in interest.  Forwal Construction may assign all or any part of its rights and obligations without Buyer’s consent.  Nothing express or implied in these Terms and Conditions (and any order placed by Buyer with Forwal Construction) is intended to confer, and nothing herein shall confer, upon any person other than the Buyer and Forwal Construction any rights, remedies, obligations or liabilities whatsoever.