Hawk Fences LLC Terms and Conditions
1. Estimate.
Hawk Fences, LLC (“Hawk Fences”) has provided an estimate to you, or one or more of your affiliates (each, a “Buyer”) (the “Estimate”) for the installation of certain fence products (“Services”) supplied by Hawk Fences. Buyer acknowledges and agrees that the pricing for the Services in the Estimate includes the cost of procuring the fence products (the “Fence Products”) to be installed. An Estimate is valid for the time period indicated on the Estimate or, if no time period is indicated, for 30 days from the issue date of the Estimate. To accept an Estimate, Buyer must pay the deposit specified in the Estimate, or must submit a completed purchase order that is consistent with the terms of the Estimate (a “Purchase Order”) to Hawk Fences, before the end of the Estimate period. If Buyer issues a Purchase Order after the Estimate period, Hawk Fences will review the Purchase Order and may, in its sole discretion, accept the Purchase Order as presented, reject it, or make a counteroffer by issuing a revised Estimate. Estimates are based on the accuracy of the specifications provided to Hawk Fences by Buyer. Hawk Fences may re-quote a job at time of receipt of a Purchase Order from Buyer if the specifications or other input materials included in the Purchase Order differ from the information used for purposes of the Estimate.
2. Contract and Acceptance.
(a) Provision of the Services to Buyer is subject to Hawk Fences’s credit approval of Buyer and these terms and conditions (the “Terms and Conditions”), which form an integral part of any Estimate issued by Hawk Fences and any Purchase Order placed by Buyer. Hawk Fences’s offer to provide the Services as set forth in the Estimate is expressly conditioned upon Buyer’s assent to these Terms and Conditions without any additional or different terms, conditions or warranties, and Buyer’s acceptance of the Estimate and assent to these Terms and Conditions in accordance with Section 1 above. s. Any additional or different terms, conditions or warranties in any Purchase Order, confirmation or other communication delivered by Buyer are expressly rejected and not binding on Hawk Fences. The accepted Estimate, the conforming provisions of the Purchase Order, together with these Terms and Conditions and any applicable attachments, addenda, schedules and exhibits attached by Hawk Fences to the Estimate (this “Agreement”) constitute the entire agreement of the parties with respect to its subject matter. Hawk Fences accepts Purchase Orders by confirming the order (whether by written acceptance, invoice or otherwise) or by providing the Services specified in those Purchase Orders, whichever occurs first. No Purchase Order is binding on Hawk Fences unless accepted by Hawk Fences.
(b) Buyer may not cancel or change the terms of an Estimate, or a submitted Purchase Order (including changes to Products set forth on a Purchase Order previously submitted to Hawk Fences), without Hawk Fences’s prior written consent. If Buyer wishes to cancel any Purchase Order, Hawk Fences reserves the right, as a condition to consenting to the cancellation, to retaining any deposit made by Buyer with Hawk Fences, and/or charging Buyer a cancellation fee and/or restocking fee for costs incurred, as determined by Hawk Fences in its reasonable discretion. These costs may include, without limitation, special ordered materials and other specialty items, and a ten percent (10%) restocking/transportation fee.
3. Acceptance of Services
(a) Unless Buyer notifies Hawk Fences, immediately after completion of a walk-through inspection following provision of the Services, that the Services contain material defects, the Services, including installation of the Fence Products, will be deemed accepted by Buyer. Buyer’s sole remedy with respect to any defective Services will be the repair or replacement of the defective Services by Hawk Fences.
(b) Buyer acknowledges and agrees that the remedies in this Section 3 are Buyer’s sole and exclusive remedies for the Services, including the installation of the Fence Products. Except as provided in this Section 3, Buyer has no right to have Hawk Fences repair or replace any defects in the Services, including its installation of the Fence Products.
4. Pricing and Payment.
(a) For all Services, Buyer will pay Hawk Fences all fees designated in the Estimate (as they may be modified by Hawk Fences in accordance with Section 1) Buyer will pay Hawk Fences the Purchase Price within ten (10) days following the invoice date, unless alternative payment terms are agreed to in writing by Hawk Fences and the Buyer before the Purchase Order is delivered. Hawk Fences may review Buyer’s creditworthiness at any time and require a credit agreement. If, in Hawk Fences’s sole discretion, the financial position of the Buyer has changed prior to completion of any Purchase Order, Hawk Fences may refuse to complete the Services, including installation of the Fence Products, pending modification of the terms of payment. Buyer and Hawk Fences agree that Hawk Fences will have no liability to Buyer for taking such action.
(b) If any invoice for Products remains unpaid ten (10) calendar days after the date on which payment was due, Hawk Fences will be entitled (without notice and without limitation of any other rights of Hawk Fences) to charge interest on the unpaid balance from the date due at a rate equal to the lesser of: (i) 1.5% per month; or (ii) the maximum rate permitted by applicable law. If any outstanding balance remains unpaid thirty (30) days after the date on which payment was due, Hawk Fences may, without limiting any of its other rights and remedies, suspend provision of the Services, and alter or suspend any credit previously or thereafter extended to Buyer or its affiliates. Buyer will reimburse Hawk Fences for all costs and expenses of collection, including, without limitation, reasonable attorneys’ fees, if any amounts owed by Buyer are subject to collection.
(c) If Buyer has a dispute regarding any invoice, Buyer must inform Hawk Fences within five (5) calendar days after receipt of the invoice in writing regarding the nature of the dispute. Buyer will nonetheless pay all undisputed amounts as provided in these Terms and Conditions.
(d) The Purchase Price set forth in the Estimate is exclusive of all taxes, including, without limitation, federal, state and local excise, sales, use and other taxes, now or hereafter levied or imposed on the sale, delivery, use, or installation of Products, and Buyer will be solely liable for, and will pay, all such taxes, regardless of whether included on any invoice.
5. Limited Warranty; Disclaimer; Limitation of Liability.
(a) SUBJECT TO BUYER’S PROVISION OF AT LEAST TWO (2) FEET OF CLEARANCE ON EACH SIDE OF THE PROPERTY WHERE SERVICES ARE TO BE PERFORMED, SERVICES ARE PROVIDED WITH A ONE (1) YEAR LIMITED WARRANTY WITH RESPECT TO HAWK FENCE’S WORKMANSHIP ONLY. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, ANDHAWK FENCES DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS, ORAL, IMPLIED OR STATUTORY, WITH RESPECT TO ANY SERVICES OR FENCE PRODUCTS. HAWK FENCES SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY WITH RESPECT TO SERVICES AND ANY FENCE PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUALITY, COMPLETENESS, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. HAWK FENCES DOES NOT ASSUME ANY OTHER OBLIGATION OR RESPONSIBILITY WITH RESPECT TO THE SERVICES OR FENCE PRODUCTS, AND HAWK FENCES HAS NOT AUTHORIZED ANY PERSON TO ASSUME ANY OTHER OBLIGATION OR RESPONSIBILITY ON ITS BEHALF.
(b) TO THE GREATEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL HAWK FENCES, ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, OR EMPLOYEES BE LIABLE TO BUYER OR TO ANY OTHER PERSON FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR ENHANCED DAMAGES (COLLECTIVELY, THE “DAMAGES”), INCLUDING, WITHOUT LIMITATION, FOR DAMAGES TO ANY RESIDENTIAL REAL PROPERTY OR TO ANY UNDERGROUND UTILITIES, ARISING OUT OF THIS AGREEMENT OR SERVICES, INCLUDING CUSTOMER’S COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, INABILITY TO OBTAIN SUBSTITUTE GOODS, DELAY, WORK STOPPAGE, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, OR LOSS OF PROFIT DAMAGES OF ANY KIND OR NATURE WHATSOEVER, EVEN IF HAWK FENCES IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE FOREGOING DAMAGES ARE BASED ON DEFECTS IN THE FENCE PRODUCTS OR THE I SERVICES, NEGLIGENCE (INCLUDING GROSS NEGLIGENCE) OR OTHER TORT, WARRANTY, CONTRACT, INDEMNITY, BREACH OF ANY PROMISE, STRICT LIABILITY OR OTHERWISE. THE MAXIMUM LIABILITY, IF ANY, OF HAWK FENCES, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AND EMPLOYEES FOR ALL DIRECT DAMAGES RESULTING FROM ANY FENCE PRODUCT OR THE SERVICES, AND HAWK FENCES’S BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT, WILL NOT EXCEED THE TOTAL PURCHASE PRICE PAID TO HAWK FENCES WITH RESPECT TO THE APPLICABLE SERVICES. THE LIMITATION OF LIABILITY IN THIS SECTION 5(b) WILL NOT APPLY TO APPLY TO DAMAGES CAUSED BY HAWK FENCE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(c) Wood Products: Natural Wood Aging and Deterioration. Hawk Fences utilizes high-quality, pressure-treated wood for all fencing projects to ensure durability and longevity. However, Buyer acknowledges and agrees as follows: (i) wood is a natural material and is subject to aging, weathering, and environmental changes, (ii) over time, exposure to elements such as sunlight, rain, and temperature fluctuations can cause wood to fade, warp, crack, or deteriorate, (iii) these changes are natural and do not constitute defects in the material or workmanship, and (iv) as such, Hawk Fences cannot be held responsible for any natural aging or deterioration of the wood that occurs after installation.
6. Indemnity.
Buyer will indemnify, defend and hold harmless Hawk Fences, its affiliates, and their respective officers, directors, employees, suppliers, and agents (collectively, the “Hawk Fences Indemnified Parties”), from and against any and all third-party claims, and all costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) incurred in connection with those third-party claims in any way arising out of, resulting from or relating to: (a) Hawk Fences’s supply of Fence Products or provision of Services in conformity with the specifications in the Estimate; or (b) Buyer’s use of any Fence Products or Services, including death, personal injury, damage to property, or damage to the environment. If Buyer fails to indemnify a Hawk Fences Indemnified Party as required by this Agreement, then Buyer will pay for any damages (including reasonable attorneys’ fees), claims, losses, fees, expenses and costs incurred by the Hawk Fences Indemnified Party in enforcing the terms of this Agreement.
7. Nondisclosure of Confidential Information.
All proprietary designs, drawings, and other information submitted by one party to the other party and identified as “Confidential,” “Proprietary,” or similar are the disclosing party’s confidential information. The recipient will not use or disclose that confidential information except as needed to fulfill its obligations or exercise its rights under this Agreement. The foregoing restrictions will not apply to: (a) information within the legitimate possession of the receiving party without an obligation of nondisclosure before receipt of the information from the disclosing party (or an affiliate of the disclosing party); (b) information that is, at the time of disclosure by the disclosing party, then in the public domain or thereafter comes into the public domain through no fault of the receiving party; (c) information that is obtained by the receiving party from a third party with legitimate possession thereof and the unrestricted right to make that disclosure; or (d) information ordered to be disclosed by a court of competent jurisdiction or other government agency with appropriate legal authority, provided the receiving party first notifies the disclosing party in writing as soon as reasonably possible and before disclosing any such information, and reasonably cooperates with the disclosing party if the disclosing party elects to contest the ordered disclosure or obtain confidential treatment of the information to be disclosed.
8. Compliance with Laws.
Buyer will comply with all laws, regulations and ordinances applicable to its business and use of the Fence Products and Services. Buyer will maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement, and for the use and installation of the Fence Products, and the purchase and use of the Services.
9. Termination.
In addition to any remedies that may be provided under this Agreement, Hawk Fences may terminate this Agreement, with immediate effect, upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and that failure continues for thirty (30) calendar days after Buyer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any provision of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Unless otherwise specified in the notice of termination, termination of this Agreement terminates all outstanding Purchase Orders and Estimates.
10. Miscellaneous.
(a) Independent Contractors. The parties are independent contractors. Neither party has any power to bind the other or to create any obligation on behalf of the other.
(b) Promotional Matters. Hawk Fences may issue press releases and other marketing and promotional material describing the relationship created by this Agreement and the purchase of the Products by Buyer, including displaying the Products and installation services provided to Buyer as examples of the offerings available from Hawk Fences. In connection with the Products hereunder, Buyer hereby grants Hawk Fences the right to use Buyer’s name and trademarks in any advertising and publicity materials of Hawk Fences identifying Buyer as a customer of Hawk Fences.
(c) Governing Law; Dispute Resolution. This Agreement will be governed by, and construed in accordance with, the laws of the State of Georgia without giving effect to any choice or conflict of laws provision or rule that would cause the application of the laws of any jurisdiction other than the State of Georgia. The United Nations Convention on Contracts for the International Sale of Goods will not apply to any sale or purchase of physical Products. Hawk Fences, in its sole discretion, may elect to bring an action against Buyer in: (i) the jurisdiction covering Buyer’s principal place of business or in any jurisdiction in which any assets of Buyer may be found; or (ii) any federal or state court in the State of Georgia. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(d) Force Majeure. Hawk Fences will not be deemed to be in default, or in breach of this Agreement, or otherwise liable to Buyer or to any third party in any way, for any interruption, disruption, delay or failure in the performance of its obligations under this Agreement that results directly or indirectly from any cause or circumstance beyond its control, including, but not limited to, acts of God, war or warlike conditions, terrorism, riots, embargoes, acts of civil or military authority, fire, pandemics, flood, accidents, strikes or labor shortages, sabotage, delays or failures of transportation equipment or facilities, or shortages of fuel or materials.
(e) Severability; Waiver. If any term or condition of this Agreement is held to be invalid or unenforceable, the remaining terms and conditions will remain in full force and effect and are enforceable to the maximum extent permitted by law. The failure of either party to enforce any
provision of this Agreement is not a waiver of that provision or of the right to enforce it at a later time.
(f) Survival of Provisions. The following provisions survive the termination of this Agreement for any reason: Sections 3(b), 4 (Pricing and Payment), 5 (Warranty; Disclaimer; Limitations of Liability), 6 (Indemnity), 7 (Nondisclosure of Confidential Information), 8 (Compliance with Laws), 9 (Termination), and 10 (Miscellaneous).
(g) Amendment; Assignment. This Agreement may not be amended or otherwise modified except by a writing signed by both parties. Buyer may not assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, to any other person or entity without Hawk Fences’s express prior written consent.
(h) Third Party Beneficiaries. This Agreement is not intended to benefit any third party or create any third party beneficiary rights, Notwithstanding the preceding sentence, however, all Hawk Fences Indemnified Parties are intended third party beneficiaries of this Agreement.
(i) Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes any and all prior agreements and understandings on that subject.
