Material Sales Terms and Conditions
Applicability
Any quote or other offer issued by Seller to Buyer for sale of Materials (as defined below) (“Quote”) includes and is governed by and subject to the terms contained on the face of the Quote, the terms and conditions stated in Buyer’s Credit Application and Agreement (the “Credit Agreement”), if applicable, the terms and conditions of any documentation provided by Seller to Buyer relating to delivery or shipment of Materials (“Delivery Documents”), if applicable, and these Terms and Conditions. The Quote does not constitute an acceptance of any prior offer by Buyer, and Seller expressly rejects any other terms or conditions found in any other offers, proposals, purchase order, agreements or documents relating to the Materials, including but not limited to terms on Buyer’s website, Buyer’s purchase order forms, and any contract between Buyer and any third party. The Quote, the Credit Agreement, if applicable, the Delivery Documents, if applicable, and these Terms and Conditions (collectively, the “Contract”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous communications, understandings, agreements, negotiations, representations and warranties.
Pricing and Payment
Except as otherwise stated in the Contract, prices for and quantities of Seller products sold by Seller to Buyer (“Materials) are based upon estimated quantities. If actual quantities vary more than five percent (5%) from estimated quantities, prices are subject to adjustment corresponding with any resulting increase in Seller’s costs. Seller reserves the right to adjust any prices for Materials upon thirty (30) days written notice to Buyer for any reason, including costs of materials. Fuel surcharges are adjusted weekly. Unless otherwise agreed to by the parties in writing, payment terms are net 30 days from date of purchase or sooner as may be required by applicable law. Late payments shall accrue a finance charge of one and one-half percent (1½%) per month or the highest rate allowable by law, whichever is less. Seller shall be entitled to recover all costs and expenses, including reasonable attorneys’ fees, arising out of Buyer’s failure to make all payments due under the Contract in a timely manner. If at any time Seller determines, in its sole discretion, that Buyer’s solvency or ability to perform is unsatisfactory to Seller, then Seller may require payment in advance, additional security or collateral, or a guarantee that invoices will be paid when due. Seller may suspend performance until such assurances are provided.
Taxes and Tariffs
Buyer is responsible for payment of all taxes, tariffs, and duties of any nature whatsoever, including any local, state and federal taxes. In the event of an increase in Materials costs arising out of a change in law relating to import taxes, tariffs, or other costs imposed on imports after the date of the Quote, Buyer shall be responsible for the payment of all such additional costs incurred by Seller. Buyer agrees to indemnify and hold Seller harmless from any and all costs and expenses associated with any levy or attempted levy of any such taxes, tariffs, and duties on Seller.
Suspension; Termination
In addition to any other remedies available to Seller, Seller may suspend or terminate the Contract with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under the Contract (or any other agreement Buyer has with Seller); (b) has not otherwise performed or complied with any of these terms (or complied with the terms of any other agreement Buyer has with Seller); (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; or (d) exhibits other adverse credit conditions that are unsatisfactory to Seller, as determined by Seller in its sole discretion.
Shipment; Delivery Conditions
Unless otherwise agreed in writing, all materials purchased by Buyer are F.O.B. Seller’s location sourcing the Materials. Buyer shall cause its employees, agents, representatives and subcontractors, including drivers, to comply with Seller’s safety policies and procedures when at Seller’s facilities and to maintain proper insurance. If F.O.B. Destination, the Buyer agrees to provide suitable roadways or approaches to points of delivery. Seller reserves the right to cease deliveries if Seller concludes, in its sole opinion, that the roadways or approaches are unsatisfactory. With respect to any delivery beyond Seller’s curb line, Buyer assumes liability for damages to sidewalks, driveways or other property, and any other losses and expenses incurred as a result of such deliveries to the maximum extent allowed by law.
Title and Risk of Loss
Title and risk of loss passes to Buyer at the time the materials are loaded into Buyer’s, or Buyer’s agents’, vehicles, barges or other modes of transport, in the case of F.O.B. sales, or in the case of Seller’s delivery, upon delivery of the Materials at Buyer’s location.
Limited Warranty
Seller warrants that the Materials will substantially comply with the specifications provided to Seller prior to manufacture or shipment of the Materials for a period of six (6) months from the date of delivery (“Warranty Period”). Seller’s obligation to meet the applicable specifications supersedes any and all other warranties. SELLER DISCLAIMS AND BUYER WAIVES ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY FROM COURSE OF DEALING OR USAGE OF TRADE. Buyer shall verify that Seller’s materials comply with the plans and specifications at the point of sale. The express limited warranty set forth herein shall be void if Buyer fails to pay Seller in full for the Materials provided by Seller pursuant to the Contract.
Exclusive Remedy
In the event of any breach of the Limited Warranty, provided Buyer provides Seller written notice of such breach within the Warranty Period, Seller shall, in its sole and absolute discretion, either (i) replace the non-conforming Materials with conforming Materials, (ii) refund the amount paid for the non-conforming Materials, or (iii) credit Buyer for the amount paid for the non-conforming Materials. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY PROVIDED BY SELLER TO BUYER FOR BREACH OF THE LIMITED WARRANTY.
Limitation of Liability
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WITH REGARD TO ANY CLAIM ARISING OUT OF OR RELATING TO THE CONTRACT. IT IS FURTHER AGREED THAT SELLER SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO BUYER OR ANY OTHER PARTY FOR AN AMOUNT GREATER THAN THE AMOUNT PAID BY THE BUYER UNDER THE CONTRACT FOR THE MATERIALS FROM WHICH THE CLAIM AROSE, AND TO THE EXTENT PERMITTED BY LAW BUYER WAIVES ALL CLAIMS FOR LIABILITY IN EXCESS OF THE AMOUNT PAID FOR SUCH MATERIALS UNDER THIS CONTRACT.
Time
If Seller agrees to deliver the Materials, Seller shall make reasonable efforts to deliver the Materials by the specified delivery date. Seller shall have no liability for delay or failure to supply Materials due to labor disputes, pandemics, government actions or orders, repairs to machinery, fire, flood, adverse weather conditions, inability to obtain transportation, fuel, electric power, or operating materials or machinery at reasonable cost; or by reason of any other cause beyond its control, including the inability to produce materials meeting any applicable specification or requirement.
Modification
No amendment or modification of the Contract shall be valid or enforceable unless in writing and signed by the party sought to be charged, and no prior or current course of dealing between the parties, or any usage of trade or custom of the industry shall modify or supplement the terms and conditions of the Contract.
No Waiver
The failure of Seller to exercise any right granted hereunder shall not impair or waive Seller’s privilege of exercising such right to any subsequent time or times.
Indemnity
To the fullest extent permitted by law, except to the extent caused by gross negligence or wilful misconduct by Seller, Buyer shall defend, indemnify and hold Seller, its officers, employees, agents, insurers, sureties, and affiliates, harmless from any and all losses, damages, costs, expenses (including attorneys’ fees), claims, suits, liabilities, and fines arising out of or in any way related to: (i) Buyer’s breach of the Contract; (ii) any act or omission by or on behalf of Buyer, its employees, and agents; or (iii) arising out of the delivery or use of the Materials, including those asserted by the end user of the Materials.
Applicable Law; Venue; Waiver of Jury Trial
The Contract, and the rights, duties, obligations and remedies of the parties shall be governed by or construed in accordance with the laws of the state of Ohio and the Parties agree to submit to the personal jurisdiction and venue of the federal and/or state Courts located in the County of Butler, State of Ohio in connection with any controversy arising hereunder. In any litigation involving the Contract, the prevailing party shall be entitled to recover its costs and expenses, including, without limitation, reasonable attorneys’ fees, from the non-prevailing party. BUYER AND SELLER WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER CONCERNING ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE QUOTE, CONTRACT, AND/OR THE MATERIALS.
Miscellaneous
(a) Buyer shall be fully responsible for confirming that the Materials comply with Buyer’s specifications after the materials are loaded into Buyer’s or Buyer’s agents’ modes of transport, and Seller’s obligations with respect thereto shall be limited to those in Section 7. (b)Safety Data Sheets (SDS) prepared in accordance with OSHA’s Hazard Communication Standard are available to ensure chemical safety in the workplace. Please contact Seller at the phone number or address set forth on the attached page to obtain copies. All employers with hazardous chemicals in their workplaces must have labels and safety data sheets for their exposed workers and train them to handle hazardous chemicals appropriately. Buyer agrees to draw to the attention of any persons handling or using the materials or having access to the materials while in Buyer’s possession or to whom Buyer sells or provides the materials or any part thereof any warning, information of suggestions which are contained or referred to in the Safety Data sheets or label information, or any other literature or packaging relating to the materials.
