These Terms and Conditions of Sale (“Terms”) govern the production and sale of Seller Designed Products and Purchaser Designed Products by Clifton Steel Company, an Ohio corporation (the “Seller”) to the person, firm, or corporate entity (the “Purchaser”) named in this Order Acknowledgement (“Acknowledgement”).
- GOVERNING DOCUMENTS
Absent Seller’s written agreement to the contrary, any term or provision stated in Purchaser’s Purchase Order that is inconsistent with either the Acknowledgement or these Terms shall be ineffective. In the event of any inconsistency between these Terms and any contrary portion of the first page of the Acknowledgement, the portion of the Acknowledgement shall control.
- DESCRIPTION OF PRODUCTS/AGREEMENT TO SELL AND PURCHASE
These Terms shall govern (i) all sales of products and materials to be designed by Purchaser and manufactured by Seller (collectively, “Purchaser Designed Products”) and (ii) all sales of products and materials to be designed and manufactured by Seller at Purchaser’s request (collectively, “Seller Designed Products”). The specific Purchaser Designed Products and/or Seller Designed Products covered by these Terms are described in the Acknowledgement and are collectively referred to herein as the “Products”. Except as is otherwise stated in the Acknowledgement, any design or engineering drawings and/or specifications related to the Products are hereby incorporated into this Agreement. Seller agrees to design (if applicable), manufacture and sell to Purchaser, and Purchaser agrees to purchase from Seller, the quantity of Products, at the prices and at the delivery dates stated in the Acknowledgement.
- a. PURCHASER DESIGNED PRODUCTS
If the Acknowledgment requires any Purchaser Designed Products, then Purchaser shall provide Seller with all design and/or engineering drawings and/or specifications required or desirable in order to manufacture such Purchaser Designed Products (collectively, “Purchaser’s Specifications”) in sufficient time for Seller to reasonably meet all specified manufacturing lead times. Purchaser acknowledges that Purchaser’s Specifications have been solely generated by Purchaser, and Seller shall not be responsible for any defects or deficiencies in the Purchaser’s Specifications or in the design of the Purchaser Designed Products. Purchaser shall indemnify and hold Seller harmless (including reasonable attorneys’ fees) from: i) any liabilities arising out of Purchaser’s Specifications or the design of the Purchaser Designed Products; and ii) any claims that Purchaser’s Specifications or the Purchaser Designed Products infringe upon the patents, copyrights, trademarks or any other intellectual property rights of a third party.
- b. SELLER DESIGNED PRODUCTS
If the Acknowledgment requires any Seller Designed Products, Purchaser shall provide Seller with sufficient detail on the part or products Seller is to design then Seller shall prepare and deliver to Purchaser for its approval all design, engineering drawings, specifications or schematics required for the manufacture of such Seller Designed Products (collectively, “Seller’s Specifications”). Seller shall supply Purchaser with samples of the Seller Designed Products for Purchaser’s testing and evaluation. Purchaser shall test the Seller Designed Products and either accept such product or reject it. If accepted Seller shall continue to manufacture such product. If rejected Seller shall refine its design or inform Purchaser of its termination of the Acknowledgment.
- DELIVERY
Seller shall use its best efforts to deliver Products within the time specified herein but does not guarantee to do so. Seller shall not be liable for any loss or damage of any kind or nature whatsoever, whether direct, indirect, or consequential, caused by delay in delivery for any reason whatsoever.
- STANDARD PRACTICES
Unless otherwise specifically agreed to in writing by Seller, all Products sold hereunder (including those ordered to a Purchaser’s specification) shall be produced and shipped in accordance with Seller’s and, in the case of products not produced by Seller, the manufacturer’s standard practices (including those on over and under shipments) and, where applicable, shall be subject to standard mill, tolerances and to variations in quality, dimensions, weight, straightness, section, composition, mechanical properties and surface and internal conditions consistent with good mill practice and practical testing and inspection methods.
- PRICE AND PAYMENT
Absent a contrary provision in the Acknowledgement, all of Seller’s invoices shall be paid by check and remitted to Seller’s business address. Purchaser may only pay Seller invoices by wire transfer or ACH upon the express prior written consent of Seller, and upon telephonic confirmation of electronic payment instructions with Seller’s Accounting Department. Purchaser bears responsibility and risk of loss to ensure that its payments are made to and received by Seller. Prices for the Products shall be as stated in the Acknowledgement. Absent a contrary provision in the Acknowledgement, prices for the Products shall not include, and Purchaser shall be solely responsible for paying, all applicable sales, use, or other taxes associated with its purchase of Products from Seller. Absent a contrary provision in the Acknowledgement and subject to Seller approving a request for the extension of credit, in its sole and absolute discretion Purchaser shall pay all of Seller’s invoices for Products delivered to Purchaser under this within thirty (30) days. Invoices not paid within those terms will accrue 1 1/2% interest per month until paid in full. Once purchaser has been advised that material is ready for shipment, material may be placed in purchasers’ inventory at our location and ownership shall transfer, and invoice will be issued. Seller may, at seller’s discretion, impose additional charges for the following, but not limited to:
- Credit card payments- 3% fee
- Material certifications requested by customer after the order has been placed- $35.00
- Applicable freight surcharges
- Applicable alloy surcharges
- Custom packaging requirements
- Change in customer requested delivery date
- TAXES AND DUTIES
Buyer, unless it delivers to Seller an appropriate certificate or other proof of exemption, shall be liable for and shall pay all present and future taxes and duties and any increases thereon relating to the sale or delivery of Products hereunder; provided that any such taxes or duties required by applicable law(s) to be paid or collected by Seller shall be added to and become a part of the price payable by Buyer to Seller. Seller shall have the right to correct any typographical or mathematical errors in any quotation, order, or invoice.
- FREIGHT/PAYMENT TERMS
Absent a contrary provision stated in the Acknowledgement, freight terms are F.O.B. Seller’s dock, freight collect, and shipments shall be made utilizing carriers specified by Purchaser. Purchaser may specify the method of transportation and the type and number of packing slips and other documents to be provided with each shipment. Seller will pack and ship Products in accordance with Purchaser’s reasonable instructions, including labeling. If Purchaser has not provided packing or shipping instructions, Seller will pack and ship Products in accordance with sound commercial practices. Purchaser acknowledges that all release and shipping dates are approximate. If Products are not ready for delivery in time to meet targeted delivery schedules, the party causing the delay will be responsible for additional costs of any resulting expedited or other special transportation. Purchaser will also be responsible for additional costs of expedited or other special transportation that Purchaser may require as a result of changes to its firm releases or delivery schedules or for other reasons not caused by Seller. In no event shall Seller be liable for consequential or other damages associated with any delays in shipping Products in conformity with targeted delivery schedules.
- INSPECTION OF AND TITLE TO PRODUCTS
Purchaser is responsible to inspect all Products delivered by Seller, within 10 days of receipt. Any claim by Purchaser that any of the Products are non-conforming must be made in writing within 60 days of delivery or are forever barred. Title to all Products delivered by Seller shall not pass to Purchaser until Purchaser has made full payment to Seller for same.
- LIMITED WARRANTIES
Seller warrants to Purchaser that (1) the Products will be free from defects in workmanship and materials, and will conform to any and all Purchaser’s Specifications or Seller’s Specifications, as applicable, and (2) Seller will transfer to Purchaser ownership and good title to the Products, free of all liens, encumbrances, and rights of third parties (except those created by Purchaser), upon payment in full to Seller. Unless otherwise specifically stated in the Acknowledgement, Seller does not warrant the design of the Products or their fitness for any particular purpose.
THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES AND ALL OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, ARRISING BY LAW OR CUSTOM, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED.
- NON-CONFORMING PRODUCTS
Purchaser’s sole and exclusive remedy for Products that do not conform to the warranties provided for herein will be to reject the non-conforming Products, and to require Seller, at Seller’s option and expense (including applicable shipping costs), to either repair or replace the non-conforming Products, or to refund the corresponding portion of the purchase price in exchange for a return of the non-conforming Products. Purchaser shall give Seller written notice of its claim within 60 days of shipment that Products are allegedly non-conforming. The claim shall be submitted together with a narrative description of the alleged non-conformity and such reasonable documentation as Seller may request (and the right to test, examine, and inspect the Products) in order to ascertain the legitimacy of Purchaser’s claim. Such submissions shall be sent via email to [email protected] and the applicable Sales Representative. Seller shall give Purchaser written notice of the extent to which it is recognizing the validity of such claim and its remedy election. Seller shall not be liable for money damages, consequential damages, punitive or exemplary damages, lost profits, Purchaser’s internal costs, or any other claims associated with allegedly non-conforming Products; Purchaser’s sole remedy shall be as is provided for herein.
- a. LOSS OR DAMAGE OF MATERIAL VIA FREIGHT
In the case that material is damaged upon receipt, customer must note as such on bill of lading with a description of the damage and any photos available and contact seller within a timely manner. For visible damage, customer must note as such upon receiving the material. For concealed damage, customer must note and contact seller within 3-5 business days. If material is received damaged and not so noted on the bill of lading, a freight claim for the damages may be denied by carrier and seller.
- PRODUCT LIABILITY AND INDEMNIFICATION
With the exception of Seller’s obligation to repair or replace non-conforming Products as provided for herein, Seller shall have no liability for claims arising out of the sale of Products to Purchaser. Purchaser will and does hereby agree to indemnify, defend, and hold Seller harmless from and against all third-party claims or demands for injury or death to persons, property damage, economic loss, and any resulting damages, losses, costs, and expenses (including reasonable legal fees), regardless of whether the claim or demand arises under tort, contract, strict liability, or other legal theories, if and to the extent caused by the Products. This indemnification obligation on the part of Purchaser specifically applies to the extent that the claim, injury, loss, or damage results from (1) Purchaser’s Specifications, (2) Purchaser’s design of the Purchaser Designed Products, (3) any alteration, or installation of the Products by anyone other than Seller, or (4) integration or interaction of the Products with systems or components not supplied by Seller.
- INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
Both parties shall keep the terms of the Acknowledgement and the performance thereof confidential, and shall not disclose same except as may be required by subpoena or process of law. Purchaser does not transfer to Seller any patent, trade secret, trademark, service mark, copyright, mask work, or other intellectual property right Purchaser has in information, documents, or property that Purchaser makes available to Seller, other than the right to use Purchaser’s Specifications and related intellectual property rights to produce and supply Products to Purchaser pursuant to the Acknowledgement. Seller shall retain any and all intellectual property rights to Seller’s Specifications including, but not limited to, drawings, diagrams, inventions, know-how, files, designs, functions, materials, plans, dies, molds, processes, techniques, and tooling. Any such rights deemed to be held by Purchaser shall be immediately assigned to Seller. Seller shall have exclusive right to patent, copyright, trademark or otherwise protect such intellectual property
rights in the United States or elsewhere in the world. Seller may use such intellectual property rights as it sees fit in its sole discretion, from time to time.
- DEFAULT
Time is of the essence. Either Party will be in “Default” if it (1) fails to perform any obligation under the Acknowledgement and, if the non-performance can be cured, fails to cure the non-performance within 15 business days after notice from other party specifying the non-performance, (2) admits in writing its inability to pay its debts as they become due, commences a bankruptcy, insolvency, receivership, or similar proceeding, or makes a general assignment for the benefit of creditors, or (3) becomes a debtor in a bankruptcy insolvency, receivership, or similar proceeding commenced by a third party that is not dismissed within 30 days after commencement.
- REMEDIES AND LIMITATION OF ACTIONS
(a) In the event of an uncured event of Default, the non-defaulting Party may exercise the remedies provided herein, which are exclusive and in lieu of all other rights and remedies available elsewhere by law.
(b) In the event of an uncured event of Default by Seller, other than a claim that Products are non-conforming (which claims are governed by Section 10 above), Purchaser may recover its actual out-of-pocket damages or costs directly caused by Seller’s default, but in any event incidental or consequential damages (including specifically lost profits) shall not be recoverable. Any legal action on the part of Purchaser must be brought within one (1) year of the earlier of: i) the date of delivery of the subject Products; or ii) the date of the alleged Default.
(c) In the event of an uncured Default by Purchaser, Seller may recover from Purchaser all damages recoverable at law including but not limited to any or all of the following: (1) its actual out-of-pocket damages or costs directly caused by Purchaser’s default; (2) the sums owed for Products delivered to Purchaser but not paid for; (3) the cost of finished Products not yet shipped to Purchaser; (4) the aggregate amount of monies that Purchaser would have paid Seller for Products scheduled to be sold and delivered after the date of Purchaser’s Default (Purchaser acknowledges that the actual damages sustained by Seller resulting from Purchaser’s breach of the Contract are not readily calculable and that this liquidated damages amount is fair and reasonable); and (5) Seller’s reasonable legal and litigation expenses.
(d) Notwithstanding anything to the contrary stated herein, in the event that Purchaser is in Default for failure to timely pay Seller for Products sold and delivered to Purchaser, Seller may withhold future scheduled production and/or shipments of Products until the arrearage is satisfied, and the suspension of production and/or delivery on the part of Seller under such circumstances shall not constitute an event of Default by Seller.
- RELATIONSHIP OF THE PARTIES
Purchaser and Seller are independent contractors, and nothing in the Acknowledgement makes either party the agent or legal representatives of the other.
- ASSIGNMENT
Purchaser’s obligations to Seller are not assignable or transferable, either in whole or in part, without the prior written consent of Seller.
- FORCE MAJEURE
Without limiting any other provisions of these Terms, Seller shall not be liable for any loss or damage of any kind or nature whatsoever, whether direct, indirect, or consequential, caused by a failure or delay in performance when such failure or delay is caused by strikes, lockouts, labor, disputes, accidents, fires, delays in manufacturing, transportation or delivery of material, acts of God, embargo, civil commotion, government action whether federal, provincial, municipal, foreign, or otherwise, or any other cause or causes beyond Seller’s control.
- ENTIRE AGREEMENT
The Acknowledgement and these Terms represent the entire understanding of Seller and Purchaser regarding the subject matter hereof, and supersedes all prior understandings, whether written or oral. Any amendment or modification to the Acknowledgement or these Terms must be in writing and signed by an authorized representative of both Seller and purchaser.
- SEVERABILITY
A finding that any provision of the Acknowledgement or these Terms is invalid or unenforceable will not affect the validity or enforceability of any other provision thereof.
- NOTICES
Any notice or other communication required or permitted herein must be in writing (or electronic mail communications) and will become effective on the date of actual receipt (or on the next business day if the date of actual receipt is not a business day).
- GOVERNING LAW
Unless otherwise agreed in writing, the Acknowledgement will be governed by and interpreted according to the internal laws of the State of Ohio. The Parties agree that jurisdiction and venue of any dispute under this Acknowledgement will be litigated only in either state or federal court situated in Cuyahoga County, Ohio