ONLINE SALES INVOICE TERMS AND CONDITIONS
Last Revised: February 27, 20231. APPLICABILITY.
1.1. General. These terms and conditions for the sale of goods (these “Invoice Terms”) are the only terms that govern the sale of the goods (“Goods”) by Fox Factory, Inc. and its subsidiaries (referred to as “us,” “we,” “our,” or collectively as “FOX”) to you the buyer (“you” or “Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Invoice Terms.
1.2. Prevailing Terms. Your accompanying invoice (the “Invoice”) and these Invoice Terms (collectively, this “Agreement”) comprise the entire agreement between us, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The Invoice Terms prevail over any of your general terms and conditions of purchase regardless of whether or when you submitted a purchase order or such terms. Fulfillment of your order does not constitute acceptance of any of your terms and conditions and does not serve to modify or amend this Agreement.
2.1. Delivery Date. The goods will be delivered within a reasonable time after the receipt of your purchase order, subject to availability (“Delivery Date”). We will not be liable for any delays, loss, or damage in transit.
2.2. Delivery Point. Unless otherwise agreed in writing by the parties, we will deliver the Goods to the “Ship To” address written on the Invoice (the “Delivery Point”) using our standard methods for packaging and shipping such Goods. You will be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
2.3. Partial Shipments. We may, in our sole discretion, without liability or penalty, make partial shipments of Goods to you. Each shipment will constitute a separate sale, and you will pay for the units shipped whether such shipment is in whole or partial fulfillment of your Invoice.
2.4. Failure to Accept Delivery. If for any reason you fail to accept delivery pursuant to our notice that the Goods have been delivered at the Delivery Point, or if we are unable to deliver the Goods at the Delivery Point because you have not provided appropriate instructions, documents, licenses or authorizations, then: (a) risk of loss to the Goods shall pass to you; (b) the Goods shall be deemed to have been delivered; and (c) we, at our option, may store the Goods until you pick them up, whereupon you shall be liable for all related costs and expenses.
3. QUANTITY. If we deliver to you a quantity of Goods of up to five percent (5%) more or less than the quantity set forth in the Invoice, you will not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and will pay for such Goods the price set forth in the Invoice adjusted pro-rata. The quantity of any installment of Goods are recorded by FOX on dispatch from FOX’s place of business is conclusive evidence of the quantity received by you on delivery unless you can provide conclusive evidence otherwise.
4. SHIPPING TERMS. Delivery will be made Ex Works (Incoterms®2020) FOX’s designated location unless otherwise agreed to by us. We will make delivery in accordance with the terms on the face of the Invoice.
5. TITLE AND RISK OF LOSS. Title and risk of loss passes to you upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, you hereby grant to FOX a lien on and security interest in and to all of the right, title and interest of yours in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.. As collateral security for the payment of the purchase price of the Goods, you hereby grant to FOX, a lien on and security interest in and to all of the right, title, and interest of yours (the Buyer), in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase-money security interest under Article 9 of the Georgia Uniform Commercial Code.
6. INSPECTION AND REJECTION OF GOODS.
6.1. Inspection. You will inspect the Goods within five (5) days of receipt (“Inspection Period”) and you will be deemed to have accepted the Goods unless you notify us in writing of any Nonconforming Goods during the Inspection Period and furnishes written evidence or other documentation. “Nonconforming Goods” means only the following: (a) product shipped is different than identified in your purchase order; or (b) product’s label or packaging incorrectly identifies its contents.
6.2. Options for Non-Conforming Goods. If you timely notify us of any Nonconforming Goods, we will, in our sole discretion either: (a) replace such Nonconforming Goods with conforming Goods, or (b) credit or refund the Price (defined in Section 7) for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by you in connection therewith. You shall obtain a return material authorization and ship, at your expense and risk of loss, the Nonconforming Goods to the designated FOX facility. If we exercise our option to replace the Nonconforming Goods, we shall, after receiving your shipment of Nonconforming Goods, ship to you, at your expense and risk of loss, the replaced Goods to the Delivery Point.
6.3. Exclusive Remedy. You acknowledge and agree that the remedies set forth in Section 6.2 are your exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6.2, all sales of Goods to you are made on a one-way basis and you have no right to return Goods purchased under this Agreement to us.
7. PRICE. You will purchase the Goods from us at the price set forth in the Invoice (the “Price”). All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by you Such charges, costs, and taxes shall be your responsibility. You shall not be responsible for any taxes imposed on, or with respect to, FOX’s income, revenues, gross receipts, personnel or real or personal property or other assets.
8. PAYMENT TERMS.
8.1. Payable Before Shipment. You will pay all invoiced amounts due to FOX prior to shipment unless separately agreed to by us. You will not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with us, whether relating to our breach, bankruptcy, or otherwise.
8.2. Late Payment. You will pay interest on all late payments at the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. You will reimburse us for all costs incurred in collecting any late payments, including, without limitation, collection costs and reasonable attorneys’ fees. In addition to all other remedies available under these Invoice Terms or at law (which FOX does not waive by the exercise of any rights hereunder), we will be entitled to suspend, re-route, or cancel the delivery of any Goods if you fail to pay any amounts when due.
9. LIMITED WARRANTY.
We warrant the Goods will be free from material defects in material and workmanship (the “Limited Warranty”) according to the FOX warranty manual in effect at the time of purchase for each specific Good. The Limited Warranty period may differ for each specific Good. If no warranty manual exists, Section 9-10 Invoice Terms will govern and control.
EXCEPT FOR THE LIMITED WARRANTY INCLUDED IN THE SPECIFIC LIMITED WARRANTY MANUAL PROVIDED FOR EACH GOOD, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY LAW, OUT OF ANY COURSE OF DEALING OR PERFORMANCE, CUSTOM, INDUSTRY STANDARD OR OTHERWISE, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE PRODUCTS, THE CONDITION, QUALITY, SAFETY, PERFORMANCE OR RESULTS OF THE PRODUCTS, THEIR MERCHANTABILITY OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
WE WILL NOT BE IN BREACH OF THE LIMITED WARRANTY SET FORTH UNLESS YOU PROVIDE NOTICE OF THE DEFECT AS DESCRIBED IN THE WARRANTY MANUAL PROVIDED FOR EACH GOOD.
10. LIMITATIONS OF LIABILITY.
IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE LESSOR OF THE TOTAL OF THE AMOUNTS PAID TO US FOR THE GOODS SOLD HEREUNDER OVER THE COURSE OF THE PRECEDING YEAR OR ONE MILLION DOLLARS ($1,000,000), WHICHEVER IS LESS.
THE LIMITATION OF LIABILITY SET FORTH IN SECTION 10 WILL NOT APPLY TO (a) LIABILITY RESULTING FROM OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (b) DEATH OR BODILY INJURY RESULTING FROM OUR ACTS OR OMISSIONS; AND (c) GOODS MANUFACTURED ACCORDING TO YOUR SPECIFICATIONS.
FOX WILL NOT BE LIABLE FOR BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9 UNLESS (a) YOU GIVE WRITTEN NOTICE OF THE DEFECT, REASONABLY DESCRIBED WITHIN THIRTY (30) DAYS OF THE TIME YOU DISCOVERED THE DEFECT OR OUGHT TO HAVE DISCOVERED THE DEFECT; (b) YOU GIVE FOX THE REASONABLE OPPORTUNITY, AFTER RECEIVING THE DEFECTIVE GOODS, TO EXAMINE SUCH GOODS; AND (c) FOX REASONABLY VERIFIES YOUR CLAIMS REGARDING THE DEFECTIVE GOODS.
UNLESS OTHERWISE STATED IN YOUR WARRANTY MANUAL FOR A SPECIFIC GOOD, FOX SHALL NOT BE LIABLE FOR A BREACH OF WARRANTY IF: (a) YOU MAY ANY FURTHER USE OF THE GOODS AFTER PROVIDING NOTICE OF DEFECT; (b) THE DEFECT ARISES BECAUSE YOU FAILED TO FOLLOW FOX’S INSTRUCTIONS AS TO THE STORAGE, INSTALLATION, COMMISSIONING, USE, OR MAINTENANCE OF THE GOODS; or (c) YOU ALTER OR REPAIR THE GOODS WITHOUT THE PRIOR WRITTEN CONSENT OF FOX. UNLESS OTHERWISE STATED IN YOUR WARRANTY MANUAL, IN THE EVENT OF A DEFECT, FOX WILL, IN ITS SOLE DISCRETION EITHER: (a) REPAIR OR REPLACE THE DEFECTIVE PART OF SUCH GOOD; (b) CREDIT OR REFUND THE PRICE OF SUCH GOOD AT THE PRO-RATA INVOICE RATE; OR (c) AT YOUR REQUEST, RETURN AND REFUND SUCH GOODS AT YOUR EXPENSE.
UNLESS OTHERWISE STATED IN THE SPECIFIC PRODUCT WARRANTY MANUAL, THE REMEDIES SET FORTH IN SECTION 10 SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY AND FOX’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9.
Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third-Party Products are not covered by the warranty in Section 9. For the avoidance of doubt, FOX MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, 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.
11. TERMINATION. In addition to any remedies that may be provided under these Invoice Terms, we may terminate this Agreement with immediate effect upon written notice to you, if you: (a) fail to pay any amount when due under an Invoice and such failure continues for thirty (30) days after your receipt of notice of nonpayment; (b) have not otherwise performed or complied with any of these Invoice Terms, in whole or in part; or (c) become insolvent, file a petition for bankruptcy or commence or have commenced against you proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; (d) any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods; or (e) a Force Majeure Event (defined in Section 14) remains for a period of thirty (30) consecutive days following written notice (which may be in the form of a cancellation).
12. COMPLIANCE WITH LAW. You will comply with all applicable laws, regulations, and ordinances. You will maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Additionally, if applicable, you will comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by you. You assume all responsibility for shipments of Goods requiring any government import clearance.
13. CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of FOX, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by FOX to you, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by us in writing. You will neither use FOX’s name in disclosures to the public or advertisements of any kind nor disclose the existence of the content of an Invoice without our prior, written consent. We will be entitled to injunctive relief for any violation of this Section 13. This Section does not apply to information that is: (a) in the public domain; (b) known to you at the time of disclosure; or (c) rightfully obtained by you on a non-confidential basis from a third party.
14. FORCE MAJEURE. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such Party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events “Force Majeure Event,” including but not limited to: acts of God; flood, fire, earthquake, or explosion; war, invasion, hostilities, terrorist threats or acts, riot or other civil unrest; government order, law, or action; embargoes or blockades in effect on or after the date of this Agreement; other similar events beyond the control of the Impacted Party. The Impacted Party shall give notice within five (5) days of the Force Majeure Event to the other Party, stating the duration the occurrence is expected to continue. The Impacted Party will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable.
15. ASSIGNMENT. You will not assign, transfer, or delegate any of your rights or obligations under this Agreement without prior written approval by us. Any such assignment or delegation shall be null and void.
16. RELATIONSHIP OF THE PARTIES. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for nor bind the other Party in any manner whatsoever.
17. NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
18. GOVERNING LAW. All matters arising out of or relating to this Agreement are governed and construed in accordance with the laws of the State of Georgia, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Georgia in each case located in the City of Atlanta and County of Fulton, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The rights and remedies stated herein shall be cumulative in addition to those provided by law or equity. The United Nations Convention on the International Sale of Products shall not apply to this Agreement or any Purchase Order.
19. ENTIRE AGREEMENT. These Invoice Terms together with any Invoice constitutes the entire agreement between us relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.
20. WAIVER. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or maybe construed, as a waiver thereof.
21. NOTICE. All notices to you will be sent to the addresses on the Invoice, and to us at 2055 Sugarloaf Circle, Suite 300, Duluth, GA 30097 to the attention of “Legal Department.” All notices shall be delivered by nationally recognized overnight courier, signature required (with all fees prepaid) or certified or registered mail (in each case return receipt requested, postage prepaid). Notice is effective upon receipt. Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the notice has complied with the requirements of this paragraph.
22. SEVERABILITY. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect, invalidate, or render unenforceable any other term or provision of this Agreement.
23. AMENDMENT AND MODIFICATION. These Invoice Terms may only be amended or modified in writing and must specifically state that it amends these Invoice Terms and be signed by an authorized representative of each party.
24. SURVIVAL. Provisions of these Invoice Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: 1, 5, 8, 9, 10-11, 12-21, 23-24.