Terms & Conditions of Purchase
I. Acceptance of Terms & Conditions
1. You as the Buyer accept these Terms & Conditions, terms found on the Purchase Order
(“Order”), related invoice and any amendments (“Terms”) by placing the Order with Cody
Foster & Co, Inc (“Seller”). Buyer’s full or partial performance under the Order will also
constitute acceptance of these Terms. By placing the Order, Buyer agrees to be bound by,
and to comply with all these Terms. These Terms apply to everything listed in the Order
and constitutes Seller’s offer to Buyer, which Seller may revoke at any time prior to
Buyer’s acceptance.
2. Buyer shall purchase the products offered by Seller as described in the Order by placing
the Order with Seller through an authorized representative of Buyer. Buyer shall
communicate indicating the specific Products (including part number, description and
revision levels), specifications related thereto, quantity, price, total purchase price,
shipping instructions, requested delivery dates, “bill to” and “ship to” addresses, tax
exempt certifications, if applicable, and any other special instructions.
3. Any terms and conditions of the Buyer or exceptions to Seller's terms presented prior to or
at the same time of performance (such as on any invoice, Buyer's standard form contract,
or other delivery or pre-delivery document) are deemed to be material alterations of
Seller’s offer and are rejected by Seller unless expressly agreed to in writing by Seller's
authorized representative.
4. Without limiting the generality of the foregoing, acceptance of purchase orders by Seller
shall be contingent upon the availability of materials.
Fluctuations in Pricing
5. If significant fluctuations occur at any time in the material cost of components required
under the purchase order, or shipping costs incurred by Seller in connection with the
purchase order, Buyer and Seller will review the impact of such fluctuations and mutually
agree to any pricing changes arising therefrom. For purposes hereof, a “significant
fluctuation” is defined to mean 10% or more of the quoted bill of material shown in the
Order.
6. In the event that no agreement is reached, Seller shall have discretion to cancel the purchase
order within 48 hours of any effort by Seller to confer with Buyer about any significant
fluctuation.
Delays
7. If there is a delay in completion of shipment of any Order, due to any change requested by
Buyer or as a result of any delay on Buyer's part in furnishing information required for
completion of the order, the price agreed upon at time of acceptance of order is subject to
change.
Taxes
8. There will be added to the quoted price any sales or other tax or duty that Seller may be
required to collect or pay upon the sale of products quoted. If such matter is not included
in the invoice for products, it may be invoiced separately later. Buyer agrees to pay the tax
or duty in accordance with the payment terms shown in the invoice, or, if no payment terms
are listed, in accordance with these Terms & Conditions.
Payment Terms
9. In cases where Seller agrees to extend credit to Buyer, the invoice issued by Seller to Buyer
will govern when payment is due for products purchased by Buyer. When Seller does not
extend credit to Buyer, payment will be made by credit card on the same date shipment is
made and an invoice will be issued to Seller. Buyer may also choose to make ETF payment
or wire transfer prior to shipment and the invoice date
10. If Buyer is delinquent in the payment of any invoice by 30 days of the due date stated in
the invoice, Seller may at its discretion, withhold shipment (including partial shipments)
of any order, or may at its option, require Buyer to prepay for further shipments. Any sum
not paid by Buyer when due shall bear interest until paid at a rate of one-percent (1%) per
month/annum.
Security Interest
11. Buyer grants Seller a security interest in the products purchased under any purchase order
to secure payment for those products purchased. If requested by Seller, Buyer agrees to
perfect the security interest.
Shipment Terms
12. Unless otherwise specified in a purchase order, all shipments shall be made by ex-works
Seller’s facility in Valentine, Nebraska.
Shipping
13. The shipping dates will be established by Seller upon receipt of purchase orders from
Buyer. The promised delivery date is the best estimate possible based on current and
anticipated factory loads of when the product will be shipped. Seller assumes no liability
for loss, damage or consequential damage due to delays. Delivery shall occur and risk of
loss shall pass to Buyer upon dispatch of the good from Seller’s shipping facility.
Transportation shall be at Buyer's sole risk and expense and any claim for loss or damage
in transit shall be against the carrier only.
Rescheduling Deliveries
14. Rescheduled deliveries will be subject to acceptance by Seller. If any such reschedule
represents a delay in shipment, the purchase price is still due in accordance with the original
invoice. In addition, Seller may issue an additional invoice for any and all costs incurred
by Seller associated with the delay.
15. If Buyer requests that Seller reschedule delivery, Seller may charge storage for an
additional charge of 3% of the total invoice amount, or cancel the order outright.
Inspection, Acceptance & Limitation of Liability
16. Buyer shall promptly inspect the products upon receipt. If product is found to be defective,
Seller at its discretion may ship to Buyer additional product, issue a credit, or issue a refund.
Products shall be deemed accepted by Buyer 15 days after the Buyer’s actual receipt of
products unless Buyer has communicated otherwise to the Seller.
17. If Buyer informs Seller of a defect of product purchased Seller shall make final
determination as to the existence or cause of any alleged defect or any other matters with
respect to the applicability of this limited warranty.
18. Limitation of liability: Seller's aggregate liability arising from or relating to this order is
limited to the amount paid by Buyer for the goods purchased. To the maximum extent
allowable under applicable law, Seller shall not be liable under this order for any special,
incidental, consequential, indirect, or punitive damages including, without limitation, lost
revenues even if Seller has been advised of the possibility of such damages.
19. This limited warranty is the exclusive warranty provided by Seller. Seller makes no other
warranty, express or implied. Warranties of merchantability and fitness for a particular
purpose are excluded, and do not apply.
Cancellation
20. Regarding an order/s of less than $50,000 aggregate total per Buyer, Buyer may cancel an
order upon delivery of a written cancellation or termination notice to Seller at least 60 days
prior to shipment. Cancellation will not be permitted after this deadline. Regarding Buyers
whose order/s aggregate total is greater than $50,000, Buyer may cancel the order, but only
within 30 days of placement of order, and only by written notice to Seller.
Line items with quantities more than 96+ pieces of any one item, will not be able to be canceled.
Governing Law & Venue
21. This Agreement shall in all respects be construed, interpreted, and enforced in accordance
with, and governed by the laws of the State of Nebraska. Buyer agrees that the appropriate
judicial forum is Cherry County, Nebraska, and waives any argument of forum non
conveniens.
Severability
22. If any term or provision of this Agreement shall be held invalid or unenforceable to any
extent, the remainder of this Agreement shall not be affected and each other term and
provision of this Agreement shall be valid to the fullest extent permitted by law.
Modification
23. Any amendment, change or modification of this Agreement shall be effective only if it is
in writing and signed by the parties hereto.
Notices
24. All notices, requests, demands, and other communications under this Agreement shall be
in writing and shall be deemed to have been duly given:
(i) On the date of service if served personally on the party to whom notice is to be given;
(ii) On the next day if sent by a reputable overnight mail carrier; or
(iii) On the third day after mailing if mailed to the party to whom notice is to be given, by
first-class mail registered or certified, postage prepaid, and properly addressed as follows:
SELLER: Cody Foster & Co., Inc., 601 W. A Street, Valentine, NE 69201.
BUYER: The address reflected on the purchase order.
Any party may change its address for purposes of this paragraph by giving the other
parties written notice of the new address in the manner set forth above.
Waiver
25. The failure of either party to insist upon strict compliance with any of the terms, covenants
or conditions of this Agreement by the other party shall not be deemed a waiver of that
term, covenant or condition, nor shall any waiver or relinquishment of any right or power
at any one time be deemed a waiver or relinquishment of that right or power for all or any
other time.
Force Majure
26. Seller shall not be liable for any delay in delivery or for non-delivery, in whole or in part,
caused by the occurrence of any contingency beyond its reasonable control, including but
not limited to war (whether an actual declaration thereof is made or not), sabotage,
insurrection, rebellion, riot or other act of civil disobedience, act of public enemy, failure
or delay in transportation, act of any government or any agency or subdivision thereof,
judicial action, labor disputes, fire, accident, explosion, epidemic, quarantine, restrictions,
storm, flood, earthquake, pandemic declared by the World Health Organization, United
States Centers for Disease Control or other government agency vested with the authority
to declare a pandemic.
Assignment
27. This Agreement shall not be assignable by either party without the prior written consent of
the other party, which consent shall not be unreasonably withheld.
Entire Agreement
28. These Terms & Conditions, those on the applicable invoice, and purchase order entire
agreement between the parties with respect to its subject matter and supersedes all previous
agreements and understandings between the parties.
updated: 9/4/2023