Terms and Conditions of Sale

Parties. “Seller” means Flagpoles Etc. a Michigan corporation. “Buyer” or “Customer” means the person (either an entity or an individual) purchasing Goods or Services from Seller.

THIS SALE IS EXPRESSLY LIMITED TO AND MADE CONDITIONAL UPON THE TERMS AND CONDITIONS CONTAINED HEREIN. OBJECTION BY BUYER TO ANY OF THE TERMS CONTAINED HEREIN SHALL BE DEEMED TO HAVE BEEN WAIVED IF WRITTEN NOTICE OF THE OBJECTION IS NOT RECEIVED BY SELLER WITHIN FIVE DAYS OF THE DATE OF RECEIPT OF THESE TERMS AND CONDITIONS OR BEFORE PART OF THE DESCRIBED GOODS ARE ACCEPTED BY BUYER, WHICHEVER OCCURS FIRST.

Application. These Terms and Conditions of Sale define the relationship of Buyer and Seller and apply to: (1) all sales of equipment, parts, supplies, materials, or other personal property (individually and collectively, “Equipment”) by Seller to Buyer; and (2) the provision of all services provided by Seller to Buyer (collectively, “Services”). Buyer acknowledges and agrees that these Terms and Conditions of Sale are incorporated in, and are a part of, each quotation, purchase order, invoice, release, requisition, work order, shipping instruction, specification, and any other document, whether expressed verbally, in written form or electronic commerce, relating to the sale of Equipment by Seller to Buyer (these documents are collectively referred to as this “Agreement”).

Controlling Provisions. These terms and conditions shall supersede any provisions, terms, and conditions contained on any confirmation order, and/or other writing Buyer may give or receive, and the rights of the parties shall be governed exclusively by the provisions, terms, and conditions hereof.

Acceptance. All orders or contracts are accepted with the understanding that they are subject to Flagpoles Etc.’s ability to obtain the necessary raw materials. All orders or contracts as well as shipments applicable thereto are subject to Flagpoles Etc.’s current manufacturing schedules, and government regulations, orders, directives, and restrictions that may be in effect periodically.

Limitations of Actions. ANY ACTION FOR BREACH OF THIS CONTRACT OF SALE MUST BE COMMENCED BY BUYER WITHIN 15 DAYS AFTER THE CAUSE OF ACTION HAS OCCURRED.

Quotations, Pricing & Payment

Quotation Expiration. Written quotations are valid for a period of 30 days unless otherwise noted by Seller. Any quote that has not been accepted by the Buyer within the 30-day time period is void. Quotations are subject to correction in the event of stenographic or clerical errors. Prices quoted are for specific quantities shown, released for manufacture and shipment at one time to one destination unless otherwise stated. Any change in the quantity of an order and/or split shipments is subject to price revision.

Pricing. Prices for goods and other related services shown in any Seller or manufacturer product publication, including but not limited to catalogs, brochures, and websites, are subject to change without notice. Prices do not include related freight charges, use tax, sales tax, excise tax, value-added tax, similar taxes, or charges of any nature whatsoever imposed by any governmental authority unless otherwise expressly noted by Seller. Any taxes due are the responsibility of the Buyer.

Terms of Payment. 50% of the total cost of a service is due upon acceptance, the remaining balance is due and payable to Seller upon delivery of goods and or completion of installation. 100% of the product is due upon acceptance. Any amounts due by the Buyer to Seller that are unpaid after the Installation Date will bear interest at the rate of 1.5% per month or the maximum rate permitted by law, whichever is less. The accrual or payment of any interest as provided above will not constitute a waiver by Seller of any rights and remedies in connection with a default by Buyer. Buyer will pay all court costs, attorney fees, and other costs incurred by Seller in collecting past-due amounts, including interest. If shipment or delivery of Equipment is delayed by or at the request of Buyer, the remaining payment will be due in full upon completion of manufacturing. Notification of such will be provided. A storage fee of $200.00 per day will be charged. In such event, Seller may impose, and Buyer shall pay, storage charges and other incidental expenses incurred by Seller as a result of the delay in addition to any interest on late payments otherwise due.

Collection. Buyer shall, in the event that legal action is required on the part of Seller to collect the amount owed to Seller by Buyer, pay to Seller all costs of collection including reasonable attorney’s fees.

Seller’s Right of Possession. Sellers shall have the right, in addition to all other rights Seller possess, at any time for credit reasons or because of Buyer’s default(s), in whole or in part, to recall goods in transit, retake same, and repossess all goods stored with Buyer, without the necessity of taking any other proceedings. Buyer consents that all the merchandise so recalled, retaken, or repossessed, shall become Seller’s absolute property.

Delivery & Ownership

Delivery. Any delivery dates or other schedule of performance by Seller are approximations. The sole obligation of Seller with respect to the schedule of delivery or performance will be to use commercially reasonable efforts to deliver the goods and or services, or otherwise to perform, consistent with the reasonable demands of its business. In any event, Seller will have no liability to Buyer or any other person for delays in performance due to strikes or labor disputes of any type; accidents, fire, floods, acts of God, or actions by governmental authorities; acts, omissions, or delays of Buyer or any other third party; shortages of labor; or without limitation of the above, for any causes reasonably beyond the control of Seller.

Delays. All orders are accepted by Buyer with the understanding that Seller shall not be liable for delays in delivery or installation of goods or inability to deliver goods caused by or due to inability to obtain transportation, equipment, or material, or by reason of insurrection, fires, floods, storms, embargoes, actions of any military or civil authorities, whether legal or de facto, strikes, labor difficulties, riots, lockouts, acts of God, or other similar or different circumstances beyond the control of Seller.

Freight. All costs of freight, transportation, mailing (unless prepaid), and other transportation charges shall be paid by Buyer. The buyer shall also pay for all increased freight rates whether prepayment for freight rates have been received or not. Freight across any body of water is not included and is an additional charge. Failure to notify that crossing a body of water is required constitutes a fine of $ 500.00 plus the costs of additional ferry or other fees incurred.

The customer is responsible for being prepared to take delivery and will be responsible for any freight charges due to undeliverable flagpoles due to inaccurate addresses or unavailability. Flagpoles are delivered on a 53' truck in most instances. Make sure that your location can accommodate that delivery. By placing an order, you confirm that you are able to receive Semi Truck Freight shipments at the shipping address specified, that shipping fees for rejected or undeliverable freight shipments will not be refunded and you will pay for all return to origin freight charges. I

f you need different arrangements or more information, please contact us before ordering at 248-634-7183.

Security Interest. As security for payment of all amounts due to Seller, Buyer grants to Seller a security interest in all products and services sold by Seller to Buyer, and Seller will have all rights of a secured party under the Uniform Commercial Code with respect to the product or services. Buyer appoints Seller as its attorney-in-fact with authority, at Seller’s option, to take actions as Seller deems reasonable in the circumstance to perfect the above security interest in any one or more jurisdictions, and Buyer shall pay all applicable filing fees.

Goods Resold by Buyer. If goods are resold by Buyer, Buyer will include in its agreement resale provisions that limit recoveries in accordance with this Agreement. In case of Buyer’s failure to include in any agreement for resale the terms providing for such limitations, Buyer will indemnify and hold Seller harmless against any liability, loss, cost, damage, or expense (including reasonable attorney fees) arising out of or resulting from the failure.

Customer Responsibilities

Compliance with Laws. Buyer will be responsible for compliance with all federal, state, or local laws or regulations respecting safety or respecting use of the product and shall indemnify and hold Seller harmless from and against any and all claims of violations of laws or regulations or other claims of personal injury or property damage directly or indirectly related to the installation, maintenance, or operation of the product.

The buyer shall secure and pay for permits, fees, and inspections by agencies necessary for proper execution and completion of work.

Inspection. ALWAYS INSPECT the shaft and boxes that arrive with your order to verify product accuracy and if any shipping damage is present. Upon arrival, remove all shipping materials (plastic or paper wrapping and shipping tube) if there is any chance moisture will come into contact with the shaft. Moisture can cause staining. If the flagpole is left in a wrapping/shipping container once received at the job site, the Seller and manufacturer will take no responsibility for staining that may occur. Warning labels are prominently displayed on the wrapping and/or at both ends of the shaft.

If the Buyer leaves the shaft in the wrapping, you do so at the risk of having the pole stain if moisture or water is present. If stored for a long period before installation, a dry location with low humidity is necessary. Even when stored inside, it is best to unwrap the pole and store it in an area where damage is unlikely to occur.

Acceptance. Buyer will have 3 days from the date of delivery to notify Seller, in writing and contact a representative at 248-634-7183, of any defects, nonconformance, or rejection of goods (other than defects or nonconformities due to damage, shortage, or errors in shipping that will be reported as set forth below). Claims for shipping damage, errors, or shortages must be made in writing to Seller, and contact Seller representative at 248-634-7183 no more than 3 days after receipt of shipment. After this period, the Buyer will be deemed to have irrevocably accepted the product and or services, if not previously accepted. After acceptance, the Buyer will have no right to reject the product and or services for any reason or revoke acceptance.

Shortages. Flagpoles Etc will not be responsible for any shortages if they are not reported within 30 days of receipt.

Damage During Shipping. Products damaged in shipping must be refused at the time of delivery or noted damaged on the delivery receipt for replacement. Contact Customer Service within 3 days. We will reship your order and file a freight claim for damages. Goods may not be canceled due to freight damage. We will make every attempt to ship the replacement promptly.

Note: The two mold lines (seams) are characteristic of the fiberglass flagpoles. They are not a manufacturer defect.

Shipping Delays Seller is not liable if a shipment is lost, misdelivered, damaged, or delayed because of circumstances beyond our control. After the product is shipped from FPE, please contact customer service for our assistance with delays.

Cancellation or Termination. In the event of cancellation of this Agreement by Buyer, or in the event of default under this Agreement by Buyer, Buyer will pay to Seller on demand all direct and indirect costs (including, without limitation, all applicable restocking or cancellation charges, including reimbursement for direct costs assessed by the manufacturer) incurred directly or indirectly by Seller in connection with this Agreement, all as reasonably determined by Seller, plus any profit to be negotiated with Buyer. A 5% processing fee applies (void where prohibited) to any canceled order, even if it has not yet shipped out, and a 50% restock fee will apply. All orders including custom color flags, tapered flagpoles, shoe base and tilting shoe base, and Colossal steel flagpoles are non-refundable. The seller reserves the right to issue any refunds via Corporate Check.

Any service or delivery canceled once scheduled is subject to a 50% cancellation and restocking fee.

Flagpole Installation

Safety. The following conditions are designed to advise, protect, and inform Buyer of safety issues. BUYER IS RESPONSIBLE for these measures. Following these requirements will help to keep everyone safe and eliminate disputes because of additional costs during the installation process.

Contact Utility Companies. Buyer will not hold Seller (including, but not limited to, its employees or installers) responsible for any damage to underground supply lines not installed or staked by utility companies including, but not limited to, irrigation lines, septic fields, electrical lines, telephone/cable lines, etc. Owner/Purchaser must contact appropriate utility companies (Miss Digg) to have all/any underground items clearly marked AT LEAST three (3) full business days before Seller is scheduled to install a flagpole or perform any other work on Seller’s property. A show-up fee of $500 will be charged if Miss Digg is not called or clearly marked. Miss Digg can be contacted by:

Dialing 811 or 248-370-6400 or 800-482-7171, OR online via a Remote Ticket Entry program or e-Locate program: http://newtin.missdig.org/newtinweb/missdig_e-locate.html#divLogIn The notification center is open 24 hours a day, 365 days a year to take ticket requests.

Installation. It is the sole responsibility of the Buyer to contact the proper authorities for any and all underground items. Such underground items shall be clearly marked. The seller will not be liable for damage to unmarked underground items. The seller will not be liable for unavoidable damage to the surrounding landscape. The seller will take all necessary measures to reduce any damage to the surrounding landscaping.

Excavation. The price of installation includes excavation by the Seller of the foundation (unless otherwise noted) ONLY through natural grass and dirt. If it becomes necessary to dig, remove, cut, or jackhammer through asphalt, concrete, boulders, or man-made debris that may be encountered during the excavation process, additional charges will apply and be billed at an hourly rate then in effect with the Seller. The buyer will be consulted prior to any additional charges. Materials or dirt excavated/cut etc. from the job site will be placed by the Seller on the property next to the hole dug or within a reasonable distance as instructed. The buyer is responsible for having the debris removed from the site. The seller can provide this service for an additional charge, but this needs to be discussed prior to installation.

Payment of Additional Charges/Change orders. Buyer agrees to pay within 15 days all charges assessed for any changes due to engineering requirements, changes to order, mobilization of equipment, and labor provided for in manufacturing and installation. Buyer is still responsible for all charges even if the installation cannot be completed due to circumstances beyond the control of Seller. Remobilization fees will be assessed.

Location Selection. Buyer takes all responsibility for the selection of flagpole, location, installation, and erection. Extreme caution and common sense should be used when determining the placement of a flagpole as well as the size and number of flags that will be flown from that flagpole. A minimum distance of at least 10 feet is recommended between the fly end of the flag and any overhead power line that may encounter the flag during raising and lowering. Flags should never encounter any objects when flown from a flagpole as this can result in flags being ripped or flagpole failure resulting in personal or property damage.

Location Requirements. The location for the installation must be crane/truck accessible. If this is not possible it is imperative to advise Seller of this, so your job is priced correctly. Additional charges will apply if the installation location is not crane/truck accessible and other arrangements were not made IN ADVANCE with Seller. Water is to be available within 100 yards of the flagpole foundation location. If water is not available, please advise prior to installation and water can be transported to the foundation site for a nominal fee.

Buyer Permission. Buyer hereby authorizes the use of excavation and hoisting equipment by Seller on the installation site when necessary. Buyer agrees that Seller shall not be held responsible for damage to landscaping, concrete driveways, or sidewalks from the use of equipment.

Non-use Period. The buyer agrees not to fly any flags for a minimum of three days after installation of a flagpole. This is to ensure the curing of concrete and settlement of the installation area. The seller is not responsible for flagpoles that fall out of plumb due to the flying of flags before the full three-day curing process is complete.

Oversized or Multiple Flags. If you are flying an oversized flag or multiple flags, it is recommended you take multiple or oversized flags down in high wind conditions. Buyer shall not hold Seller responsible for any personal or property damage that may occur after a flagpole has been installed.

Warranties

Representations or Warranties. The seller makes no representations or warranties concerning the product except such as are expressly contained herein. Orders for products or services may not be changed or modified orally.

Warranties. The warranty obligations of Seller for goods and/or services sold by Seller will in all respects conform and be limited to the warranty extended by the manufacturer of goods. The sole remedy available to the Buyer with respect to defects in the goods will be against the manufacturer under any applicable manufacturer’s warranty to the extent available to the Buyer.

Base Warranty. Flagpoles Etc (“FPE”) warrants to the first purchaser (“Buyer”) of an FPE flagpole shaft (the “Flagpole”) that the Flagpole will, upon shipment by FPE, be free from defects in material and workmanship and to be free from corrosion except those items normally consumed in service (the “Warranty”). The Warranty applies to the pole shaft only and excludes anchor bolts, flagpole accessories, foundations, and finishes such as powder coating and anodizing. FPE provides separate warranties for its anodized and powder-coated flagpoles and for hardware and other Flagpole accessories. WITH RESPECT TO FLAGS, FPE MAKES NO, AND EXPRESSLY DISCLAIMS ALL WARRANTIES with the exception of defective material or workmanship. If any failure to conform to the Warranty appears, and written notice of such failure is given to FPE during the lifetime of the Flagpole’s intended use (the “Warranty Period”), FPE will, upon substantiation of such nonconformity and at its sole option, either repair or replace the non-conforming Flagpole. Specifically excluded from the Warranty is the cost to remove, ship, replace, or reinstall the non-conforming or repaired/replaced Flagpole. Repair or replacement by FPE is the Buyer’s sole remedy, and FPE’s sole obligation, in the event of a failure to conform to the Warranty. The Warranty does not cover defects or failures resulting from improper maintenance, misuse, abuse, radiation, overloading, accident, acts of God, or other casualty beyond the control of FPE, alterations, modification, or additions without written permission from FPE, or from failures or corrosion due to:

• Improper installation.
• Misapplication – a product used outside of specified use.
• Damage from handling, transportation, installation, vehicular impact, abuse, or vandalism.
• Site specific wind-induced or other vibration.
• Installation in soils with a pH under 5 or over 9.
• Installation using highly caustic grouts or concrete.
• Improper grounding.
• Not removing pole from its original shipment wrapping materials

The Flagpole shall not be returned without prior written authorization of FPE and must be shipped freight prepaid by the Buyer. If FPE elects to replace the nonconforming Flagpole, such replaced Flagpole shall become the property of FPE.

FPE MAKES NO OTHER EXPRESS WARRANTY AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER IMPLIED WARRANTIES OTHER THAN THOSE THAT MAY NOT BE DISCLAIMED AS A MATTER OF LAW. THE DURATION OF ANY IMPLIED WARRANTY THAT MAY NOT BE DISCLAIMED BY APPLICABLE STATE OR FEDERAL LAW IS LIMITED TO THE WARRANTY PERIOD.

Regardless of whether a claim against FPE is based on the Warranty or is an action in contract, tort (negligence or strict liability), or otherwise, FPE’s liability for losses, damages, or expenses of any kind arising from the design, manufacture, installation, use, repair, or sale of the flagpole is limited, unless otherwise prohibited by applicable law, to an amount not exceeding the cost of the FPE flagpole giving rise to such liability. FPE shall not be liable or responsible for any indirect, incidental, consequential, or special damages.

Some states do not allow limitations on how long an implied warranty lasts or the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusion may not apply to you. This warranty gives you specific legal rights and you may also have other rights which may vary from state to state. The foregoing shall not be construed as limiting, in any manner, any of the rights or remedies available to Seller because of any default of Buyer under the Uniform Commercial Code as in force and effect in the State of Michigan.

Limitations of Warranty. Flagpole components and flags DO NOT fall under any warranty except for defective material or workmanship. Standard manufacturer’s/materials warranty does not include any damage resulting from flying a flag larger than the recommended size per manufacturer’s specifications and/or size recommended by the National Association of Architectural Metal Manufacturers (NAAMM), which publishes Guide Specification for Design of Metal Flagpoles. Standard manufacturer’s/materials warranty does not include any damage brought on by accident, collision, vandalism or any other incidental and/or willful act by others.

Return Policy

Refusal at Time of Deliver. Products damaged in shipping or with any manufacturer’s defect must be refused at the time of delivery or noted damaged on the delivery receipt for replacement. Flagpoles are not a returnable item. Flagpoles that have been installed by the customer are not subject to any damage claim.

Authorization for Returns. All returns must be authorized in advance by the seller. Buyer must receive an RMA number from Seller within 30 days of receipt for components and flags, or the return will not be processed. Buyers must prepay all freight on authorized returned goods. Freight damage claims resulting from the return shipment are the responsibility of the Buyer. Return, repair, or replacement of material without prior approval from Seller voids the return. Returns will be subject to a 20% restocking fee and, if applicable, a 5% credit card processing fee. Flagpoles and customer products are unreturnable items. All sales are final.

General Provisions

Entire Agreement; Modification. This Agreement contains the entire agreement between Seller and Buyer relating to the sale of goods and provision of services. It can be modified or rescinded only by a written signed by both parties, except that Seller may correct any typographical or clerical errors, including errors in mathematical computation, that may exist in this Agreement. Any document submitted by Buyer to Seller confirming its intention to purchase Equipment described in this Agreement (purchase orders or releases) will be deemed to constitute a confirmation and acceptance of this Agreement, even if the document states terms in addition to or different from those in this Agreement. All agreements between Seller and Buyer will be solely under the terms and conditions of this Agreement and these Terms and Conditions of Sale, and Seller objects to any and all additional or different terms contained in any document submitted to Seller by Buyer. Any execution by Seller of any other document submitted by Buyer in connection with the purchase of goods does not constitute acceptance of or agreement to any terms and conditions in addition to or different from those contained in this Agreement and these Terms and Conditions of Sale but will constitute only acknowledgment of receipt of the document. In addition, notwithstanding any terms contained in any documents submitted by Buyer in connection with the purchase of Equipment described under this Agreement, the acceptance of delivery by Buyer of Equipment described in this Agreement will constitute a course of conduct constituting Buyer’s agreement to the terms and conditions of this Agreement and these Terms and Conditions of Sale, to the exclusion of any additional or different terms and conditions.

Waiver. No waiver of any provision of this Agreement will be binding unless in writing signed by an authorized representative of the party against whom the waiver is asserted and will apply only to the specific case for which the waiver is given. Failure of either party to insist on strict performance of this Agreement will not be construed as a waiver of any term or condition of this Agreement.

Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Michigan.

Enforcement. In case of any dispute in excess of $10,000.00 arising from or related to the Work, this Agreement or these Terms and Conditions, the dispute shall be submitted to and settled by arbitration to be held in Oakland County, Michigan in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association, except any rules which require the parties to use the American Arbitration Association as their sole arbitration administrator. The arbitrator shall have exclusive authority to determine the scope of [his / her] authority and the scope of the dispute to be adjudicated in the arbitration. The arbitration proceedings shall be adjudicated within 90 days of demand, except to the extent that the procedural commercial arbitration rules of the American Arbitration Association are inconsistent. Judgment upon and award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator or the Court shall award all costs including reasonable attorney fees, court costs and arbitration fees to the prevailing party.