All purchases are made subject to the following terms and conditions, and Premier Metal Services, LLC (“Buyer”) objects to any different or additional terms or conditions contained in any invoice or purchase order acknowledgement or any other document submitted by the vendor (“Seller”).
1. ACCEPTANCE OF TERMS AND CONDITIONS: Buyer hereby orders from the Seller identified on the front of this Contract/Purchase Order (“Order”) the goods (“Goods”) and/or services (“Services”) specified on the front of this Order, subject to and upon the express terms and conditions printed and written on the front and reverse hereof (“Terms and Conditions”). This Order shall be deemed accepted by Seller and shall constitute the exclusive agreement between the parties upon any of the following: (a) Seller’s acknowledgement of the Order, (b) Seller’s commencement of performance, or (c) Seller’s acceptance of any payment under this Order. Buyer shall not be bound by any terms and conditions not appearing hereon. SHIPMENT BY SELLER OF THE MATERIAL ORDERED SHALL CONSTITUTE IRREVOCABLE ACCEPTANCE OF AND AGREEMENT TO THESE TERMS AND CONDITIONS AND AN IRREVOCABLE WAIVER BY SELLER OF ALL TERMS AND CONDITIONS CONTAINED IN ANY ACCEPTANCE FORM OF ANY OTHER COMMUNICATIONS WHICH ARE INCONSISTENT WITH THE TERMS AND CONDITIONS SET FORTH ON THIS ORDER UNLESS SPECIFICALLY AGREED TO IN WRITING BY BUYER.
2. PRICES AND PAYMENTS: All prices are firm and shall not be subject to change unless evidenced by a written amendment to this Order signed by Buyer and Seller. No charges of any kind, including, without limitation, boxing, packing, or transporting to the point of delivery stated in the Order, will be allowed unless specifically agreed to in writing by Buyer. The cost of freight (including freight insurance) is to be borne by Seller unless otherwise indicated in writing in the Order or in another writing by Buyer. Unless otherwise specified in these Terms and Conditions or the Order or otherwise agreed in writing by Buyer and Seller, payment by Buyer shall be made according to discount terms offered by Seller or, if not offered, within 30 days following the later date of Seller’s invoices or receipt of the Goods and/or Services hereunder. In the event the London Metal Exchange (“LME”) or any other commodity metals exchange utilized by Premier Metal Services or any of its divisions or subsidiaries (“Premier”) and a counterparty to effectuate a terminal market contract (“trade”) cancels or voids such trade as a result of suspension of trading activity for any reason whatsoever, any pricing quoted or accepted by Premier as part of such trade likewise shall be null and void and of no effect. Pricing of the physical contract for such trade shall be re-set to zero. Premier shall have no liability for any lost profits, diminution or value or other monetary loss resulting from the cancellation or voiding of the affected trade and the re-pricing of the trade due to such cancellation.
3. SPECIFICATIONS: All articles ordered to Buyer’s specifications must comply with such specifications current as of the date of this Order unless otherwise specified by Buyer. Any manufacturing or other specifications referred to in this Order are hereby made a part hereof, as if fully set forth herein.
4. CHANGES: Buyer shall have the right to make changes in this Order, but no additional charge by Seller will be allowed unless authorized in writing by Buyer. If such changes cause a material increase in Seller’s contract price or delivery schedule, Seller shall notify Buyer immediately and within 10 days of such notice shall submit a detailed cost breakdown comparing original requirements and costs to the changed requirement and costs. The parties will then negotiate an equitable adjustment in contract price, delivery schedule or both. Such adjustment shall not become effective until the execution by Buyer and Seller of an Order amendment. Nothing in this clause shall excuse Seller from proceeding with the Order as changed.
5. DELIVERY: Time is of the essence in this contract. If Seller’s delivery of the purchased Goods or Services is not made in the quantities and at the times specified herein, Buyer reserves the right without liability and in addition to any other rights and remedies, to terminate this contract and to procure substitute goods or services and charge Seller with any loss incurred including lost profits and special damages. Buyer shall have the right to reject any Goods or Services which are tendered by special damages. Buyer shall have the right to reject any Goods or Services which are tendered by Seller in advance of the date scheduled for delivery, to accept early delivery of Goods or Services and defer payment until after the scheduled delivery date or to accept early delivery of Goods and place such Goods in storage at Seller’s expense until the scheduled delivery date. In the event of termination or change, no claim will be allowed for any such manufacture or procurement in advance of Seller’s reasonable flow time unless Buyer’s prior written consent has been obtained. Neither party shall be liable for delays or defaults due to causes beyond its control and without its fault or negligence, provided that when Seller has reason to believe that performance will not be made as scheduled written notice setting forth the cause of the anticipated delay is immediately given to Buyer. If Seller’s delay or default is caused by a delay or default of a subcontractor or supplier, such delay or default shall be excused only if it arose out of causes beyond the control of both Seller and the subcontractor or supplier and without the fault or negligence of either of them and the Goods or Services were not obtainable from other sources in sufficient time to meet the required delivery or performance schedule.
6. PACKING: All articles shipped under this Order are to be packaged in accordance with Buyer’s instruction as specified in this Order, or in the absence of such instruction, in a manner that will provide for efficient handling and will preclude damage to the articles during shipping and/or storage. Damage to any article resulting from improper packaging will be charged to the Seller. No additional charges will be allowed for packing, or transportation thereof, unless stated on the face of this Order. The Buyer’s weight determination will be accepted as final and conclusive on all shipments. The Buyer’s order number must appear on all invoices, packages and bills of lading.
7. INSPECTION: All materials or articles ordered may be subject to (i) inspection during the period of manufacture, (ii) inspection prior to shipment and (iii) final inspection and acceptance at destination, notwithstanding any prior payment or inspection and acceptance. Buyer may reject and hold at Seller’s expense, subject to Seller’s disposal, all materials or articles not conforming to applicable drawings, specifications and/or samples. Seller agrees to replace at its expense or at Buyer’s option, to refund the price of any article which fails to meet the requirements of applicable drawings, specifications and/or samples. Materials or articles rejected and returned to Seller shall not be retendered by Seller to Buyer unless notification of that fact is submitted with the retender and Buyer agrees to acceptance thereof. Final inspection and acceptance by Buyer of any materials or articles delivered hereunder shall not be conclusive as to latent defects, fraud, such gross mistakes as to amount to fraud, or Seller’s warranty obligations hereunder. During performance of this Order, Seller shall maintain a Quality Control/inspection hereunder acceptable to Buyer. The system is subject to review, verification, and analysis by authorized Buyer representatives. All process work must be performed by sources approved by Buyer or Buyer’s customer, as applicable.
8. REJECTION: If any of the Goods and/or Services ordered hereunder are found at any time to be defective, or otherwise not in conformity with the requirements of this Order or any other specifications furnished by Purchaser, Purchaser, in addition to its other legal rights, may, at its option: (i) reject and return in whole or in part such Goods at Seller’s expense; (ii) take such actions as may be required to cure all defects and/or bring the Goods into conformity with all requirements, at Seller’s own expense, and (iii) by written notice to Seller require Seller to re-perform, at its own expense, any defective portion of the Services performed.
9. DISPUTES: Pending the final resolution of any dispute involving this contract, Seller agrees to diligently proceed with performance of this contract, including the delivery of Goods. Seller shall submit to Buyer’s authorized Purchasing Representative a written demand for Buyer’s final decision regarding any dispute between the parties relating to this contract, unless Buyer, on its own initiative has already rendered such a final decision. Any final decision by Buyer shall be expressly identified as such, in writing, and signed by Buyer’s authorized Purchasing Representative. Buyer’s failure to render a final decision within ninety (90) days after receipt of Seller’s demand shall be deemed a final decision adverse to Seller’s contentions. Buyer’s final decision shall be conclusive and binding regarding the dispute unless Seller commences and action to contest such decision within ninety (90) days following the date of the final decision or one (1) year following the accrual of the cause of action, whichever is later.
10. ENTRY, AUDIT AND INSPECTION: Seller agrees that its plant, books and records so far as they relate to the performance of this or a related order, or costs incurred under this or a related order (to the extent consistent with laws and regulations), shall at all practical times be subject to review, inspections and audit by any authorized representative of the Buyer, any authorized representative of the Buyer’s customer.
11. WARRANTIES: Seller hereby warrants that all Goods and Services covered by this contract will conform with Buyer’s instructions, specifications, drawings and data, will be merchantable, will be free from defective design, materials or workmanship and will be fit for Buyer’s purposes. Seller further warrants that the Goods and Services furnished under this contract shall conform to all representations, affirmations, promises, descriptions, samples or models forming the basis of this Contract. Seller agrees that these warranties shall survive acceptance of the Goods and Services. Seller further warrants at that these warranties shall survive acceptance of the Goods and Services. Seller further warrants that all Services performed by or on behalf of Buyer will be performed in a competent workmanlike manner and shall be free from faults, and any warranties of additional scope given by Seller to Buyer shall apply. None of said warranties and no other implied or express warranties shall be deemed disclaimed by excluded unless evidenced by a purchase order change notice or revision issued and signed by Buyer. The warranties hereunder shall inure to the benefit of Buyer, its successors and assigns and Buyer’s customers. If there is a breach of warranty, Buyer may remove the product from any component, assembly or system into which the product may have been incorporated and return such product, at Seller’s expense, for correction, replacement or credit as Buyer may elect.
12. PRICE WARRANTY: The Seller warrants that the prices of the Goods set forth herein do not exceed those changed by the Seller to any other customers purchasing the same goods in like or lesser quantities and under the same or similar circumstances.
13. INDEMNIFICATION: Seller agrees to indemnify and save Buyer harmless from any and all losses, liabilities, damages, claims, demands, suits, actions, proceedings, subrogations, and expenses including court costs and attorney fees, arising from or relating to Goods delivered or to Services or labor performed pursuant to this contract, (hereinafter collectively referred to as “Claims”) which are made by any third party including employees, workers, servants or agents of Seller or its subcontractors. Seller further agrees upon receipt of notification, to promptly assume full responsibility for the defense of any and all such Claims which may be brought against Buyer. In the event Buyer furnished property is used by Seller in the performance of this contract, Buyer’s property shall be considered in the full custody and control of Seller during the period of use by Seller. Seller’s obligations pursuant to this provision shall survive the completion of performance and the expiration or termination of this contract. Notwithstanding the foregoing, Seller shall have no obligation to indemnify Buyer in any breach of warranty or product liability action brought by a third party which is directed to Goods delivered hereunder which was designed entirely by Buyer and which were manufactured by Seller in accordance with Buyer’s specification.
14. INSURANCE AND HOLD-HARMLESS: If this contract includes the performance of labor for Buyer, or if Seller or any of Seller’s employees, representatives, agents, or subcontractors perform work on or visit the premises of Buyer in connection with performance of this contract, Seller agrees to indemnify and save Buyer harmless against all liability, claims, or demands for injuries or damages to any person or property, and agrees to defend any suit or action brought against them, resulting directly or indirectly from the work under this contract. In addition, with respect to all such work or visits to Buyer’s premises, Seller shall provide Buyer a Certificate of Insurance naming Buyer as an additional insured, with the following coverages: General and Contractual Liability ($1,000,000 policy limit minimum); Workers Compensation Coverage (statutory limits).
15. COMPLIANCE WITH LAWS, EXECUTIVE ORDERS, AND REGULATIONS: In the performance of this Order, Seller agrees to comply with all applicable federal, state or local laws and executive orders and regulations issued pursuant thereto and agrees to indemnify Buyer against any loss, cost, damage, or liability by reason of Seller’s violation of this clause.
16. LABOR DISPUTES: Whenever Seller has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Order, Seller shall immediately give notice thereof including all relevant information with respect thereto to Buyer. Seller shall insert the substance of this clause, including this sentence, in any subcontract hereunder wherein a labor dispute may delay the timely performance of this Order except that any subcontractor need give the required notice and information only to its next higher-tier subcontractor.
17. DEFAULT: The Buyer may terminate this Order or any part thereof for (1) default, (2) if Seller becomes insolvent or (3) any bankruptcy proceedings are instituted by or against Seller.
18. GRATUITIES: Neither Seller nor its agents or representatives shall offer or extent gratuities, such as gifts or entertainment, to any of Buyer’s officers or employees, regardless of the purpose or intent. The Buyer may terminate this Order for default if Buyer has reasonable cause to believe that gratuities were offered or given by the Seller, or any agent or representative of Seller, to any officer or employee of the Buyer.
19. PROPRIETARY RIGHTS: Seller shall keep confidential all technical and proprietary information furnished to Seller by Buyer in connection with this Order, including blueprints, data, designs, drawings, engineering data for production, processes , product know-how, reports specifications, and the feature of all equipment, gauges, parts, patterns, and tools furnished to Seller by Buyer in connection with this contract. Seller shall not use such items or information in the design, manufacture or production of any goods or for any other purchase or for the manufacture or production of larger quantities than those specified, except with the express consent in writing of the Buyer. Seller, including its agents, employees and representatives will exercise extreme caution to prevent disclosure of such information to their parties. The obligations of this provision shall survive the completion of performance and expiration or termination of this contract.
20. SUBCONTRACTING: Seller shall not procure or contract for the procurement of any item covered by this Order in completed or substantially completed form without first securing the written approval of the Buyer.
21. ASSIGNMENTS: No assignment of this Order or of any monies due or to become due hereunder or delegation of any duties or performance under this Order, shall be binding upon Buyer until Buyer’s written consent thereto is obtained.
22. PRODUCT LIABILITY INSURANCE: Seller shall at all times maintain product liability insurance and vendor’s insurance of not less than $2,000,000 per occurrence and $5,000,000 in the aggregate and, upon Buyer’s request, shall name Buyer as an additional insured thereunder. Upon Buyer’s request, Seller shall provide Buyer with a copy of a certificate evidencing that such product liability insurance coverage is in full force and effect as of the date of this Agreement. Seller further agrees that not less than thirty (30) days prior to the expiration of any such product liability insurance or vendor insurance policy, Seller will deliver to Buyer evidence of a renewal or a new policy to take the place of the policies expiring.
23. ATTORNEYS’ FEES: If any legal action is necessary to enforce the terms of this agreement, the prevailing party shall be entitled to reasonable attorney’s fees in addition to any other relief to which it may be entitled.
24. RIGHT OF SETOFF: Buyer shall be entitled to set off, deduct, or recoup any credit, claims, or refunds to which Buyer is entitled under any purchase order, invoice, contract, or transaction between Buyer and Seller, against any amounts due or arising under this Order.
25. ASSIGNMENT OF ACCOUNTS RECEIVABLE: Seller covenants it will not assign, pledge, discount, or factor its accounts receivable or invoices arising out of sales to Buyer or any purchase order issued by Buyer to a third party (factor). Any assignment or attempted assignment or pledge will be null and void and of no effect.
26. WAIVER: Buyer’s failure to insist upon the performance of any term or condition of this contract or to exercise any right hereunder on one or more occasions shall not constitute a waiver or relinquishment of Buyer’s right to demand future performance of such item or condition or to exercise such right in the future.
27. ENTIRE AGREEMENT AND AMENDMENT: This Order, together with such documents (if any) as are expressly incorporated herein by reference, constitutes the entire agreement and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof. No course of prior dealings between parties hereto and no usage of the trade shall be relevant or admissible to supplement, explain or vary any of the terms of this Order. This Order may be amended only by written agreement executed by an authorized representative of each of the parties hereto.
28. SEVERABILITY: Where possible, each provision of this Order shall be interpreted in such manner as to be effective and valid, but if any provision of this Order shall be prohibited by applicable law, unenforceable in any jurisdiction or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition, unenforceability or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Order, or affecting the validity or enforceability of such provision in any jurisdiction.
29. GOVERNING LAW: The rights and obligations of the parties hereto under this Order shall be governed by and interpreted in accordance with the internal, substantive laws of the State of Ohio, United States of America, applicable to contracts made and performed in the State of Ohio. Jurisdiction and venue for any action arising under this Agreement will lie in the Courts of Common Pleas of Cuyahoga County, Ohio or in federal courts situated in the Northern District of Ohio (Eastern Division), in addition to any other court of competent jurisdiction. The parties irrevocably consent and submit to the personal jurisdiction of said courts. The parties hereby exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
Form P1014 Rev. 3/22
1. Controlling Terms and Conditions.
Premier Metal Services, LLC (“Seller”) agrees to sell to Purchaser only on the express condition that Purchaser, if it has not already done so, assents to the exact terms and conditions set forth both on the attached contract hereof and no other terms and conditions as proposed or may be proposed by Purchaser. Seller objects to and is not bound by any term or condition on Purchaser’s offer, expression of acceptance, confirmation or any other communication which is different from, inconsistent with, or in addition to Seller’s terms and conditions and any such terms and conditions proposed by Purchaser are hereby expressly rejected.
Seller shall have the right to reject any Purchase Order (as defined herein) or other proposed agreement for the sale of goods (“Goods”) by Seller. These Terms and Conditions of Sale (“Standard Terms of Sale”) are applicable to all purchase orders, quotations, schedules or ancillary agreements concerning the sale of Goods of any nature (collectively, the “Purchase Order”). Seller’s shipments shall not constitute acceptance of any provision of Purchaser’s offer, expression of acceptance, confirmation or any other communication from Purchaser to Seller which is different from, inconsistent with or in addition to the terms and conditions hereof., Any confirmatory action by Purchaser hereunder, or any acceptance of materials described or referred to herein shall constitute assent to the terms and conditions hereof, regardless of Purchaser’s acknowledgement hereof, and a representation that the Purchaser is solvent.
2. Purchase Price.
The purchase price of the Goods covered by this Sales Invoice (the “Purchase Price”) shall be [as stated in this Contract / on the face side of the Sales Invoice accompanying this Contract]; provided, however, that Seller may change its price(s) at any time, such change to become effective ten (10) days following written notice to Purchaser, except that if the proposed price change is an increase of more than ten percent (10%), Purchaser shall have the right to object to the proposed change by notifying Seller in writing of such objection within ten (10) days following receipt of notice of the price change. Should Purchaser timely object to the price change and the parties are unable to agree in writing on a price adjustment, Purchaser shall have the right to cancel the unfilled portion of the Purchase Order. Seller’s weights for Goods at shipping points shall govern.
In the event the London Metal Exchange (“LME”) or any other commodity metals exchange utilized by Premier Metal Services or any of its divisions or subsidiaries (“Premier”) and a counterparty to effectuate a terminal market contract (“trade”) cancels or voids such trade as a result of suspension of trading activity for any reason whatsoever, any pricing quoted or accepted by Premier as part of such trade likewise shall be null and void and of no effect. Pricing of the physical contract for such trade shall be re-set to zero. Premier shall have no liability for any lost profits, diminution or value or other monetary loss resulting from the cancellation or voiding of the affected trade and the re-pricing of the trade due to such cancellation.
3. Inspection and Acceptance.
Purchaser shall inspect material delivered hereunder within TWENTY-FOUR (24) HOURS after delivery of such material to its shipping destination. Purchaser shall notify Seller promptly of any claimed failure of the material to conform to the specifications or grade described herein and shall allow Seller a reasonable opportunity to inspect such material to enable Seller to verify the alleged nonconformity and upon such verification determine whether to issue transshipment instructions, order a replacement shipment (if practicable), or seek an adjustment with Purchaser. Purchaser’s failure to promptly notify Seller of any alleged nonconformity of the material delivered hereunder, or any commingling of such material shall constitute an acknowledgement by Purchaser that the material delivered hereunder conforms to the specifications and grade described herein, and shall constitute an immediate and irrevocable acceptance of such materials by Purchaser. Purchaser agrees to accept and pay for, at the agreed price, any shipment which does not vary by more than five percent (5%) from the amount ordered. In the event Purchaser refuses to receive materials delivered hereunder, Seller may exercise any or all of the remedies afforded to Seller by Section 2-703 et seq of the Uniform Commercial Code. Seller shall have no obligation to hold or resell such materials for Purchaser’s account.
4. Cancellation or Modification.
(a) Purchaser cannot modify, terminate, cancel or otherwise alter orders, or defer shipment, after acceptance of the order by Seller without the written consent of the Seller, which may be withheld or conditioned in Seller’s sole discretion. (b) Purchaser’s wrongful non-acceptance of Goods, or cancellation or repudiation of any Purchase Order to purchase Goods, shall entitle Seller to recover, in addition to any incidental damages caused by Purchaser’s wrongful non-acceptance, cancellation or repudiation, either (i) in the case of Goods, the risk of loss of which has passed to Purchaser at the time of wrongful non-acceptance, cancellation or repudiation, or Goods which cannot be reasonably be resold by Seller to a third party, or (ii) in the case of Goods for which other buyers exist, or where an action for the price is not otherwise permitted by law, damages equal to the profit (including reasonable overhead) which Seller would have realized had Purchaser fully performed, plus, in the case of special orders, Seller’s expenses, if any, incurred prior to receipt by Seller of notice of cancellation by Purchaser, in connection with providing such Goods.
5. Representation of Solvency; Financial Impairment of Purchaser.
Purchaser represents that by placing its order it hereby acknowledges that it is not insolvent as that term is defined in Section 1-201(23) of the Uniform Commercial Code. In the event that Purchaser becomes insolvent before delivery of materials, it will notify Seller. Failure to notify Seller shall constitute a written reaffirmation of Purchaser’s solvency at the time of delivery. Seller may, at its option, suspend performance if in its reasonable opinion the credit of Purchaser becomes impaired (“Financial Impairment”) until such time as Seller has received full payment or satisfactory security for payment for deliveries made and Seller is satisfied as to Purchaser’s credit for future deliveries. Seller reserves the right, upon written notice to Purchaser, to cancel any order or require full or partial payment or adequate assurance of performance from Purchaser, such as an irrevocable letter of credit, deposit, advance payment, C.O.D. and/or guaranties of principals and/or affiliates of Purchaser without liability to Seller in the event of: (i) Financial Impairment, (ii) Purchaser’s insolvency, (iii) the filing of a voluntary petition in bankruptcy by Purchaser, (iv) the filing of an involuntary petition in bankruptcy against Purchaser, (v) the appointment of a receiver or trustee for Purchaser, or (v) the execution by Purchaser of an assignment for the benefit of creditors. Seller reserves the right to cancel or reduce Purchaser’s credit at any time for any reason.
6. Limited Warranty.
Seller warrants that the materials delivered hereunder shall conform to the specifications or grade described herein. Seller makes NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NO AFFIRMATION OF SELLER, BY WORDS OR ACTION, OTHER THAN AS SET FORTH IN THIS PARAGRAPH OR ANY WRITTEN WARRANTY OR CERTIFICATION FURNISHED BY SELLER, SHALL CONSTITUTE A WARRANTY HEREUNDER. In the event the material delivered hereunder fails to conform to the specifications or grade described herein, Seller shall, at its option, issue transshipment instructions, order a replacement shipment (if practicable), or seek an adjustment with Purchaser.
Notwithstanding the above warranty, all delivered material shall be subject to variation in composition, properties and quality, consistent with usages in the trade and standard testing and inspection methods, together with a five percent (5%) weight tolerance for all overshipments or undershipments unless a different tolerance is set forth on the attached Contract.
7. Purchaser’s Remedies; Limitation of Liability.
The remedies of issuing transshipment instructions, ordering replacement shipments where practicable or seeking adjustments with Purchaser are the sole and exclusive remedies afforded for failure of the materials delivered hereunder to conform to the specifications or grade described herein. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR DAMAGES IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE GOODS SOLD HEREUNDER, NOR SHALL SELLER HAVE ANY LIABILITY FOR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES TO ANY PERSON, WHETHER BASED UPON BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF CONTRACT OR ANY OTHER THEORY. “Consequential damages” for purposes hereof shall include, without limitation, loss of use, income or profit, or losses sustained as the result of injury (including death) to any person or loss or damage to property (including, without limitation, property handled or processed by the use of the Goods).
8. Force Majeure.
Seller may record each partial shipment hereunder as a separate transaction, without reference to any other shipment contemplated as part of this Contract. Seller shall not be liable for any delay in or failure to make one or more deliveries hereunder, when due if such delay or failure is due to any cause beyond the reasonable control of Seller, such as but not limited to, acts of God, strikes or other labor differences, wars, blockades, unavailability of transportation facilities or fuel, compliance with any law, order, directive or regulation of government, or any other cause beyond Seller’s reasonable control. In the event of the occurrence of any of the foregoing, Seller may distribute its available material among its customers on such a basis as Seller shall deem fair and equitable, without liability to Purchaser, revoke all or any portion of its acceptance of Purchaser’s Purchase Order, extend any date upon which any performance thereunder is due, or suspend or reduce delivery of Goods during the period of interference. Seller shall have no duty or obligation to purchase Goods to enable it to perform its obligations under the Purchase Order.
All deliveries are F.O.B. Seller’s facility, freight prepaid. The charge for freight will be included in the total sale price for Goods in the invoice and, upon Purchaser’s request, will be separately set forth in the invoice. Risk of loss or damage in transit shall be borne by Purchaser. In the event Seller transports Goods to Purchaser’s facilities using private carriers, loss and damage claims shall be made directly with carrier. In absence of written shipping instructions from Purchaser, Seller shall use its own discretion in choice of carrier and method of loading and packing. Unless otherwise agreed to in writing by the parties, Seller has no obligation to obtain insurance for Purchaser covering Goods in transit to Purchaser. If Purchaser requires a means of transportation other than that selected by Seller, any extra costs incurred by reason of using such other means shall be borne by Purchaser.
10. Payment and Default.
All amounts payable hereunder shall be paid in cash or in negotiable paper collectible at its face value in United States funds at the location indicated on Seller’s invoice. Purchaser agrees to pay interest on all past due amounts as set forth on the attached Contract and further agrees to pay all costs of collection, including reasonable attorney fees. Payment terms are net 30 days unless otherwise specified in writing by Seller or agreed to in writing by Purchaser and Seller. Late charges shall be added at the rate of one and one-half percent (1½%) per month on all past due amounts, the foregoing amount reflecting a reasonable administrative expense in collecting past due amounts and is not intended as a penalty. If Purchaser fails to make payment in full or refuses to provide satisfactory security or other financial assurances of performance, then Seller shall have the right to enforce payment of the full purchase price, and may either cancel the unfinished portion of the Purchase Order, or may proceed with the Purchase Order, in which latter case, Seller shall be entitled to such extension of time for performance as is necessitated in the Purchase Order.
Purchaser agrees to indemnify and hold harmless Seller from and against all claims, demands, or actions regardless of legal theory, including the costs and expenses incurred in the defense thereof, brought against Seller, whether based on an act, omission or negligence of Purchaser, or its agents, employees or customers, in connection with Purchaser’s or its customer’s subsequent sale, consumption or use of the Goods, or upon any defect in the Goods, caused by Purchaser, its agents, employees or customers.
12. Seller’s Performance Excused Following Purchaser’s Breach.
In addition to the rights and remedies conferred upon Seller by law or in equity, in the event that Purchaser fails to make payment of the purchase price or any portion thereof when due, Seller shall have the right to immediately suspend performance and fulfillment of the Purchase Order and to institute legal proceedings to collect the balance due, and in such event Purchaser agrees to pay all collection costs incurred by Seller, including its attorneys’ fees.
This Contract, or any interest herein, is not assignable in whole or in part by Purchaser, without the prior written consent of Seller.
14. Waiver of Terms and Conditions.
The failure of Seller in any one or more instances to insist upon performance of any of the terms and conditions contained herein, or to exercise any right or privilege hereunder, shall not be construed as a waiver of any Seller’s rights or privileges hereunder.
Purchaser shall not be entitled to setoff any amount owed by Purchaser in connection with this Contract against any amount owed to Purchaser to Seller.
16. Interpretation and Forum.
This Contract constitutes the entire agreement between Seller and Purchaser with respect to the material described herein and supersedes any prior or other agreements written or oral, between the parties. No amendment, modifications, waiver or release of any provision hereof is binding upon Seller without a writing signed by Seller’s authorized representative. No course of prior dealings, acceptance or acquiescence in a course of performance and no usage of the trade shall be relevant to supplement, explain or modify any terms contained herein.
This Contract shall be deemed to have been entered into at Cleveland, Ohio U.S.A., and shall be governed by the internal, substantive laws of the State of Ohio applicable to contracts made and wholly performed in the State of Ohio. The rights and obligations of the parties under this Contract shall not be governed by the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods, the parties expressly excluding the application of said Convention to the transactions described in this Contract. Jurisdiction and venue for any action or suit initiated by Purchaser or Seller arising under this Contract shall lie exclusively in the Courts of Common Pleas of Cuyahoga County, Ohio or in federal courts situated in the Northern District of Ohio (Eastern Division) . Purchaser hereby irrevocably and unconditionally consents and submits to the jurisdiction of the courts of the State of Ohio and agrees not to challenge or assert any defense to the jurisdiction of said courts including, without limitation, forum non conveniens. A final judgment in any action or proceeding arising under or relating to this Contract may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
17. Binding Effect.
These Standard Terms and Conditions shall be binding upon and shall inure to the benefit of the successors and permitted assigns of Purchaser and Seller. Where possible, each provision of these Standard Terms of Sale shall be interpreted in such manner as to be effective and valid, but if any provision hereof shall be prohibited by applicable law, unenforceable in any jurisdiction or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition, unenforceability or invalidity, without invalidating the remainder of such provision or the remaining provisions of these Standard Terms of Sale, or affecting the validity or enforceability of such provision in any jurisdiction.
Form P1013 Rev. 3/22