None of these Terms and Conditions may be waived, added to, modified, superseded, or otherwise amended except by an express written instrument signed by Seller and delivered by Seller to Buyer (for greater certainty, these Terms and Conditions may not be added or modified simply based on contradictory terms contained in the sales order, order confirmation, bill of lading, or invoice issued by Seller). Each shipment shall be subject to the approval of Seller’s Credit Department.
Prices charged for the goods covered hereby shall be Seller’s prices in effect at the time of shipment. Buyer shall pay the prices charged for the goods in accordance with the payment terms set forth on the invoice delivered by Seller.
FCA Seller’s Location Incoterms®2010. The term “Seller’s Location” is defined as the “Shipped From” address on Seller’s documentation including, but not limited to, sales order, order confirmation, bill of lading, and invoice issued by Seller to Buyer.
4. Legal Delivery
In all cases, delivery is always completed when the goods have been loaded on the means of transport at the Seller’s Location as defined as the “Shipped From” address on Seller’s documentation. For greater certainty, the goods shall NEVER be considered to be delivered when it reaches the place of destination provided for in the contract of carriage, if any.
5. Transfer of Title and Risk of Loss
Title to goods and risk of loss of the goods shall pass to Buyer when delivered at Seller’s Location as defined as the “Shipped From” address on Seller’s documentation.
6. Contracts of Carriage
Seller has no obligation to the Buyer to make a contract of carriage.
However, Buyer may request Seller to arrange for transportation as agent and strictly on Buyer’s behalf, and in such cases, Seller arranges such transportation solely for the account of Buyer and Seller shall invoice the freight charges to Buyer in accordance to the freight terms based on Seller’s issued sales order, order confirmation, and/or shipment documentation. Where Buyer requests Seller to arrange for transportation of the goods to Buyer’s specified location, Buyer shall provide Seller with Buyer’s choice of carrier, and if such carrier information is not provided, Buyer shall be taken to have authorized Seller to select a common carrier on behalf of Buyer. All prices inclusive of freight charges where applicable are based upon prevailing freight rates and transportation charges, and if these are increased or decreased, such prices on all unshipped tonnage shall be increased or decreased accordingly. Cash discounts apply only on the mill price of the material used to produce the goods. Seller shall have the option of shipping freight collect.
For greater certainty, the fact that the Seller may contract for carriage, strictly on Buyer’s behalf and solely for the account of Buyer as its agent, shall not have any impact on the place of legal delivery or the transfer of title and risk of loss as provided for in paragraphs 4 and 5 above and shall not affect or modify the use of the FCA Seller’s Location Incoterms®2010.
Carriers are responsible for goods lost or damaged in transit and Buyer must immediately notify the carrier in writing of such loss or damage.
7. Contracts of Insurance
Seller has no obligation to Buyer to make a contract of insurance. However, Seller shall provide Buyer, at Buyer’s request, risk and expense (if any), with information in Seller’s possession that Buyer needs for obtaining insurance.
8. Taxes and other Charges
Any excise, duties, levies, taxes or similar charges which Seller may be required to pay or collect under any existing or future law, upon or with respect to the sales, purchase, delivery, storage, processing, use, consumption, or transportation of any of the goods or services covered hereby, shall be for the account of Buyer and Buyer agrees to pay the amount thereof to Seller upon request. Seller shall not be responsible for spotting, switching, or drayage charges at destination.
9. Import Formalities
Unless expressly agreed otherwise, it is the responsibility of Buyer to obtain, at its own risk and expense, any import license or other official authorization and carry out all customs formalities as importer of record (IOR) for the import of the material and for its transport to any country (the “Import Formalities”).
For greater certainty, to the extent that the parties expressly agree to have Seller performing the Import Formalities, the parties agree and acknowledge that the use of the FCA Seller’s Location Incoterms®2010 shall only be modified so that Seller performs the Import Formalities but that all other rights and obligations specifically provided for under such Incoterms® shall remain in force and unaffected. In this respect, Buyer undertakes to provide Seller with an executed copy of Form GST532 Agreement and Revocation of an Agreement Between Supplier and Constructive Importer prior to the importation of the material. Buyer acknowledges and agrees that Seller may collect all applicable GST/HST from Buyer on the supply of goods deemed to have been made in Canada.
10. Seller’s Performance
In the event that Seller’s performance is delayed, interfered with, or prevented by war, fire, strike, flood, acts of God, shortages of material, fuel, or power, delay in transportation, equipment breakdowns, riot, theft, differences with workmen or employees, or accident, or by any law, order, regulation, or requisition of any governmental agency or body, or any other cause beyond the control of Seller, Seller shall, with respect to any portion of Seller’s performance unperformed by reason of such occurrence, at its option, be relieved from further responsibility, whether or not such cause is operative at the time of Seller’s acceptance of Buyer’s order. In the event Seller elects to complete its performance, the time of Seller’s performance shall be extended for such period as may be necessary to enable Seller to make delivery after such cause has been removed, and Seller shall have the right to apportion its production among its customers (including Seller’s regular customers not then under contract) and Seller’s own departments and divisions in any manner Seller deems equitable.
11. LIMITED WARRANTY
Seller agrees to replace or allow credit, at its option, for goods found to be defective within a reasonable time but in no event more than one year after receipt by Buyer, but will not be liable for any labor, expense, or damage resulting from the use of such goods or in connection therewith. No claim will be recognized unless presented to Seller in writing within a reasonable time, but in no event more than one year after receipt of the applicable goods by Buyer and unless Seller is promptly afforded a reasonable opportunity to inspect such goods after such claim has been presented. Goods shall not be returned to Seller unless Seller authorizes such return by prior written notice to Buyer.
12. Limited Remedies
The remedies provided for in paragraph 11 hereof are Buyer’s exclusive remedies and Seller’s liability shall not under any circumstances exceed the amount paid to Seller for the applicable goods.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13. No Other Warranties
THERE ARE NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN. ALL OTHER WARRANTES, INCLUDING WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES WHICH MIGHT OTHERWISE ARISE FROM COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY SPECIFICALLY DISCLAIMED AND EXCLUDED.
14. Buyer Representations
BUYER REPRESENTS AND WARRANTS TO SELLER THAT THE GOODS ARE BEING PURCHASED FOR RESALE OR FOR COMMERCIAL USE AND THAT ANY WARRANTIES GIVEN HEREUNDER ARE NOT SUBJECT TO THE REQUIREMENTS OF THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENT ACT, 15 U.S.C. SECTION 2301 et seq. ANY WARRANTIES HEREUNDER, WHETHER EXPRESS OR IMPLIED, ARE MADE TO BUYER ONLY, AND TERMINATE UPON TRANSFER OF THE GOODS TO ANY OTHER PERSON FOR ANY PURPOSE WHATSOEVER.
15. Seller’s Standard Manufacturing Practices
Goods shall be within the limits and sizes manufactured by Seller and shall be subject to Seller’s standard manufacturing practices.
Goods purchased on the basis of weight are subject to customary quantity variations recognized by trade practice.
17. Inspection and Acceptance
Where Buyer wishes to inspect, inspection and acceptance shall be made before delivery.
18. Online Orders
All prices and inventory amounts listed online are subject to change at any time and any purchase order submitted online shall be subject to Seller’s express written acceptance as provided in Section 1 in all respects, including with respect to pricing and available inventory. Orders submitted by Buyer online cannot be retracted or amended online and any changes thereto must expressly approved by Seller.
19. Fair Labor Standards Act of 1938
Goods shall be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended.
All pricing and inventory information, whether set forth in a quotation, online or otherwise (“Confidential Information”), shall be held in strict confidence by Buyer. Buyer shall (i) only use the Confidential Information in connection with submitting purchase orders to Seller and (ii) shall not disclose any Confidential Information to any other person or entity.
21. Uniform Commercial Code
Any contract between Seller and Buyer pursuant to these Terms and Conditions shall be governed by the Uniform Commercial Code in effect in Pennsylvania on the date of Seller’s acceptance.
22. Governing Law; Jurisdiction
All matters arising out of or relating to these Terms and Conditions shall be governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Illinois. The parties further agree that the state or federal courts located in the State of Illinois shall have exclusive jurisdiction to hear and determine any claims or disputes between the parties pertaining to or arising out of these Terms and Conditions.
23. Relationship of the Parties
The relationship of the parties is that of independent contractors. Except as expressly provided for in paragraph 6 where the parties have expressly agreed for the Seller to arrange for the transportation of the goods to Buyer’s specified location as its agent, nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Last updated February 9, 2019