Unconditional Acceptance of Seller's Acknowledgement, Credit Application and Invoice are the sole and exclusive Terms & Conditions of this Order. No amplifications, modifications or variations of these Terms & Conditions of Sale will be accepted by Seller unless agreed to in writing and signed by Seller. Buyers acceptance of Seller's Terms shall be conclusively presumed by: a) Buyer's submission of a Credit Application to Seller; b) Buyer's Execution of Seller's Acknowledgement containing these Terms & Conditions, OR c) Buyer's acceptance of delivery of any products ordered from Seller.
TERMS OF PAYMENT:
Unless otherwise expressly provided, Net Cash 30 days after date of invoice. Invoice will be dated the day of shipment. The date of payment of an invoice is the date on which the check is received by Seller. Any checks, drafts or money orders received from another Payee other than the Buyer for the account of Buyer's shall be accepted on account with full reservation of rights to collect any balances, not withstanding any contrary legend on or accompanying the check, draft or money order.
INTEREST CHARGES:
This purchase agreement constitutes a "commercial account". Any amounts not paid when due as provided there under shall accrue interest at a rate equal to one and one-half percent (1 1/2%) per month calculated on the amount owed from the date upon which it became due and payable until paid.
TRANSPORTATION:
All shipments shall be F.O.B. Sellers plant unless specified otherwise on Sellers Acknowledgment.
CHANGES IN TERMS AND PRICE:
Terms of payment, interest and transportation are subject to change by Seller to terms in effect on date of shipment. Prices will be Seller's prices in effect on date of shipment.
CREDIT:
Buyer's financial responsibility is at all times subject to change by Seller and in case of doubt as to Buyer's financial, Seller may at any time by written notice to Buyer require immediate payment or other terms of payment differing from those specified above or other satisfactory security that invoices will be paid when due. If Buyer fails to comply with any terms of payment or requirements to secure payment of this or any other order or contract with Seller, further shipments may be withheld by Seller or Seller may treat the contract as terminated by Buyer under the provision of paragraph 13 hereof. In the event of default by Buyer in payment, Buyer shall be liable for Seller's cost of collection, including reasonable actual attorney's fees.
TOLERANCES:
Unless otherwise expressly provided, tolerances for products furnished by Seller are to be specifically stated within Seller's Acknowledgment.
TAXES AND/OR DUTIES:
Unless otherwise provided by law, Seller may require Buyer to pay or to reimburse Seller for any taxes (except income tax) or duties (including Anti Dumping Duties) which now or hereafter may be imposed by any taxing customs authority in respect to the products or the sales, purchase, manufacture, delivery or use thereof.
INSPECTION CHARGES:
Where Buyer requires tests or inspection not specified by Seller's Acknowledgment, Seller may charge Buyer for the actual cost or such tests or inspection.
WARRANTY:
Seller is NOT the manufacturer of the products being sold hereunder and seller cannot Warranty the workmanship, materials or the products are free from defects. Seller shall not be liable for any incidental or consequential damages for breach of warranty, whether express or implied, including without limitation any expense for the use, handling or sale of defective products. Seller's sole liability and Buyer's exclusive remedy for breach of any warranty is expressly limited at Seller's option to the repair of the defective products or the replacement thereof at the original F. O. B. point or the repayment of purchase price. Any claim shall be deemed waived unless Buyer shall give Seller written notification of such claim promptly after delivery of products and in no event later than fifteen (15) business days after delivery and shall give Seller reasonable opportunity to investigate such claims and inspect the products. Replacement of defective products or repayment of the purchase price shall be made only upon return thereof after inspection by Seller and Buyer's compliance with written shipping instructions from Seller.
CLAIMS FOR SHORTAGES AND/OR DEFECTIVE OR DAMAGED PRODUCTS:
Seller takes no responsibility for material; damaged by Commercial Freight Lines. Any claim for alleged shortages and/or defective or damaged products (other than freight claims) received by Buyer from Seller must be reported by Buyer to Seller in writing and a sample of the product "as received" which displays the defect or damage shall be sent to the Seller within fifteen (15) business days of receipt of such products. Seller will make every effort to expediently resolve claims for alleged shortages and/or defective or damaged products received by Buyer. For damaged or defective material, Seller must issue a claim return number before such material can be returned. Seller accepts no responsibility for rejected material in parts or any type of costs to produce such parts. After such fifteen (15) business day period expires, Buyer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Buyer shall not have any right to reject the products for any reason or to revoke acceptance. Buyer hereby agrees that such fifteen (15) business day period is a reasonable amount of time for such inspection and revocation.
NUCLEAR END USE:
Buyer agrees to extend Seller any U. S. Government indemnification against nuclear energy hazards and risks which Buyer obtains from the U. S. Government and any nuclear insurance protection which Buyer itself maintains or obtains from any party in connection with this contract, otherwise Seller shall take no responsibility for products used in any nuclear application.
SELLER'S RIGHT OF TERMINATION:
If this contract is made in compliance with any governmental rule or regulation, plan, order or other directive, upon the termination thereof Seller shall have the option of canceling this contract in whole or in part. If buyer shall fail to make payments on this or any other agreement between Buyer and Seller in accordance with the terms hereof or thereof. Seller may defer further shipments and defer rendering further services until such payments are made, or at its option, cancel this agreement with respect to any further performance. If pursuant to this provision, Seller shall defer any shipments or services or cancel in whole or in part this agreement. Buyer shall be liable for and reimburse Seller for all damage including any and all direct and consequential damage incurred by Seller by reason of such determent or cancellation. Buyer shall also be liable for Seller's cost of collection.
DELAYS:
Seller shall not be liable for any failure or delay in performance of delivery which is caused in whole or in part by fires, floods, accidents, riots, war whether declared or not, operation of law, government regulations or requirements, strikes or other labor difficulties, shortage of fuel, power, materials or supplies, delays in or lack of transportation or any similar or dissimilar causes beyond Seller's control. Seller shall not be liable in any event for any incidental or consequential damages in respect of failure or delay in performance of delivery due to any cause whatsoever. If Seller is unable, due to any cause beyond its control to supply the total demand for products ordered by Buyer, Seller may allocate its supply in any manner Seller deems reasonable among its customers, including Seller's branches and affiliates.
DELIVERY:
Any and all delivery dates given by Seller prior to shipment constitute estimates only. Seller will make a good faith effort to complete delivery of the products as indicated by the Seller in writing, but Seller assumes no responsibility or liability and Seller will not accept any back-charge for losses or damages due to delay or inability to deliver.
CANCELLATION:
Buyer may not cancel any order for products without Seller's express written consent. Any cancellation authorized by Seller shall be subject to a cancellation charge of up to one hundred (100%) percent of Seller's Acknowledgment value of product plus all reasonable storage charges.
COMPLIANCE WITH LAW:
Seller agrees to comply with all laws of the United States, which may be applicable to the products furnished hereunder.
TECHNICAL ADVICE:
Seller shall not be responsible for the results of any technical advice in connection with the design, installation or use of the products sold hereunder. Any technical data, production data, productions estimates and performance figures, advise, drawings and specifications furnished by Seller with respect to goods and/or services supplied and the use of any such data, figures, advise, drawings, and applications are at Buyer's risk. The use of any sample, model or illustration or the furnishing of information supplied by Seller, except as included on the description on the face hereof, is for illustrative purposes only and not part of a basis for the bargain and shall not be construed as a warranty or guarantee.
LIMITATION OF BUYER'S REMEDIES:
Except as further specifically limited by the Claims for Shortages and/or Defective or Damaged products paragraph above, Seller's liability hereunder shall be limited to the obligation to repair or replace products proven to have failed to meet the specification or proven to have been defective in quality or workmanship at the time of delivery, or allow credit therefore, as its option. Seller's total cumulative liability in any way arising from or pertaining to any product sold or required to be sold under this contract shall NOT in any case exceed the purchase price paid by Buyer for such products: IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR COMMERCIAL LOSS, CLAIMS FOR LABOR OR CONSEQUENTIAL DAMAGES OF ANY OTHER TYPE. IT IS EXPRESSLY AGREED THAT BUYER'S REMEDIES EXPRESSED IN THIS PARAGRAPH ARE BUYER'S EXCLUSIVE REMEDIES. IN NO EVENT SHALL ALMETALS, INC. BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR ATTORNEYS FEES.
VENUE, JURISDICTION, GOVERNING LAW & TRIAL:
Both Parties agree that any dispute brought by litigation shall be brought in the Livingston County Circuit Court for the State of Michigan, or United States Federal District Court, Eastern District, Southern Division. Each party irrevocably waves any claim that any such suit, action or proceeding brought in either of the aforesaid forums had been brought in an incorrect forum. This instrument shall be governed by and construed in accordance with the laws of the State of Michigan without reference to conflicts of law principles. Customer waives any right to trial by jury to the full extent permitted under law. In the event of litigation or collection efforts, Buyer will be responsible for all of Seller's costs and actual reasonable attorney fees.
CLAIM INSTRUCTIONS
Seller's Non-Conforming Material/Claim Policy is listed on our website. If you do not have access to the web and would like a copy, please contact Seller's Customer Service at 1-800-688-0140 any Business Day from 8 a.m. to 5 p.m.