Terms & Conditions
The following terms and conditions govern all sales of Metals, Inc. products, services and material whether made pursuant to oral or written orders.
- Terms and Conditions to Govern
These terms and conditions represent the final and complete agreement of the parties and no terms or conditions in any way modifying or changing the provisions stated herein shall be binding upon Metals, Inc. unless made in writing and signed and approved by an officer by or other authorized person at Metals, Inc. No modification of any of these terms shall be offered by Metals, Inc. shipment of goods following receipt of buyer’s purchase order shipping request or similar forms containing printed terms and conditions additional to or different from the terms herein. If any term, clause or provision contained in the sales contract is declared or held invalid by a court of competent jurisdiction, such declaration or holding shall not affect the validity of any other term, clause or provision herein contained.
- Acceptance of Orders
All orders are subject to acceptance by authorized Metals, Inc. personnel only
Prices including any transportation charges are subject to change without notice, unless expressly designated as firm for a specific period pursuant to a written quote or sales acceptance issued by Metals, Inc. All prices and deliveries are FOB shipping point. Metals, Inc. reserves the right to cancel order in the event selling prices which are lower than prices quoted are established by government regulations.
Unless otherwise provided in the sales contract. Metals, Inc. shall use its judgment in determining carrier and routing. In either case, Metals, Inc. shall not be liable for any delays or excessive transportation charges resulting from its selection.
- CLAIMS AGAINST COMMON CARRIER.
Carriers are responsible for goods lost or damaged in transit. If Buyer discovers a shortage or if the goods have been damaged in transit, a notation to that effect must be made upon the receipt Buyer gives the carrier or its agent. Also, Buyer should request that similar notation be made on the freight bill. Damaged goods should not be unloaded until they have been inspected and noted in writing. When Buyer feels that there is sufficient justification for a claim, file promptly with the carrier. If the material was shipped F.O.B. destination, Buyer should take the above steps, notify Seller immediately and Seller will file the claim.
Unless otherwise provided in the sales contract, Metals, Inc. will comply only with its minimum packing standards for the method of transportation selected. The cost of all special packing, loading or bracing requested by buyer will be paid for by buyer. All cost of packing and shipment for buyer’s special equipment shall be paid for by buyer.
- Payment Terms
Unless otherwise provided in the sales contract, payment terms are 1/2% 10, Net 30, with a carrying charge of 1-1/2% per month for payments received after 30 days. The discount applies only to invoiced value of the material (not to taxes or freight charges) Metals, Inc. reserves the right to require advance payment satisfactory security or the goods if the financial condition of Buyer so warrants as determined by Metals, Inc. If buyer fails to make payment in accordance with terms of this agreement or any collateral agreement, or fails to comply with any provisions hereof, Metals, Inc. may at its option (and in addition to other remedies) cancel any unshipped portion of this order. Buyer is to remain liable all unpaid accounts.
- Taxes and Import/Export Licenses
Prices do not include taxes. Taxes are paid by buyer upon invoice from Metals, Inc. unless buyer provides a valid exemption certificate acceptable to the taxing authority or unless Metals, Inc. is forbidden by law from collection of said tax from buyer. Import or export licenses are to be secured by buyer.
- Title and Risk of Loss
Delivery to carrier shall constitute delivery to buyer, and thereafter risk or loss or damage shall pass to buyer. Any claim of buyer relative to damage during shipping or delivery to the carrier any claims buyer against Metals, Inc. for shortage or damage occurring prior to such delivery to carrier must be made within five (5) days after receipt of the goods and accompanied by original transportation bill signed by carrier noting that carrier received the goods from Metals, Inc. In the condition claimed. Notwithstanding passage of the risk or loss to buyer, title and right of possession to the goods sold hereunder shall remain with Metals, Inc. until all payments hereunder including deferred payments evidenced by notes or otherwise, interest, carrying charges, and attorney’s fees, shall have been made in cast, and buyer agrees to do all acts necessary to perfect and maintain such right and title in Metals, Inc.
- Return of Products
Goods cannot be returned and orders once accepted by Metals, Inc. cannot be cancelled except upon the written approval of Metals, Inc.
- Force Majeure
Metals, Inc. shall not be liable for failure to perform its obligations under the sales contract resulting directly or indirectly from or contributed to by acts of God; acts of buyer; civil or military authority, including wage and price controls; fires; war; riot; delays in transportation; lack of or inability to obtain raw materials (including energy sources), components, labor, fuel or supplies; or other circumstances beyond Metals, Inc. reasonable control, whether similar or dissimilar to the foregoing. If certain quantities are affected and other quantities are not the quantities affected shall be eliminated from the contract without liability, but the contract shall remain unaffected. Metals, Inc. may, during any period of shortage due to any said causes, allocate its supply of such raw materials among its various users thereof in any manner which Metals, Inc. deems fair and reasonable. In no event shall Metals, Inc. be liable for special or consequential damages for any delay for any cause.
- Reasonable Attorney’s Fees
In the event suit or other proceedings shall be brought for the recovery of the purchase price, or any unpaid balance, or the breach of buyer of any term herein contained. Buyer shall pay to Metals, Inc. in addition to any damages provided by law, reasonable attorney’s fees and costs of collection.
Metals, Inc. shall not be responsible, obligated, or liable for any injury or damage resulting from an application or use of its products, wither singly or in combination with other products arising out of acceptance of this order Metals, Inc. shall have no liability for errors in weight or quantity delivered unless claim is made by buyer within (5) days after receipt of shipment and accompanied by original transportation bill signed by carrier noting that carrier received the goods from Metals, Inc. in the condition claimed. If such timely claim is made by buyer, Metals, Inc. may fulfill its responsibility by either shipping the quantity necessary to make good the deficiency or, at Metals, Inc. option, crediting buyer with the invoice price of the deficiency.
All goods sold by Metals, Inc. are warranted to Buyer to be free from defects in material and workmanship, and manufactured in accordance with industry standards. The foregoing warranty is non-assignable and in lieu of and excludes all other warranties not expressly set forth herein, whether express of implied by operation of law of otherwise, including but not limited to any implied warranties of merchantability or fitness. No agent, employee, or representative of Metals, Inc. has any authority to bind Metals, Inc. to any representation, affirmation, or warranty concerning the goods and any such representation, affirmation or warranty shall not be liable under the foregoing warranty if any loss or damage is caused by improper application or use of the goods. Metals, Inc. disclaims all liability with respect to the design to the goods and makes no warranty with respect to such design. This warranty is in lieu of all other warranties, whether express, implied, or statutory, including implied warranties or merchantability or fitness. No agent, employee, or representative of Metals, Inc. has any authority to bind Metals, Inc. to any representation, affirmation, or warranty concerning the goods and any such representation, affirmation or warranty shall not be deemed to have become a part of the basis of sales contract and shall be unenforceable. Any claimed defect in material or workmanship shall be deemed waived by Buyer unless submitted to Metals, Inc. in writing within (5) days from the date the goods are received by buyer Metals, Inc. shall not be liable under the foregoing warranty if any loss or damage is caused by improper application of use of the goods. Metals, Inc. disclaims all liability with respect to the design to the goods and makes no warranty with respect to such design. This warranty is in lieu of all other warranties, whether express, implied or statutory, including implied warranties or merchantability or fitness.
- Remedies and Limitation of Liability
Metals, Inc. shall not be liable for incidental or consequential losses, damages, or expenses arising directly or indirectly from the sale, handling or use of the goods, or from any other cause relating thereto Metals, Inc. liability in any case, including for claims of breaches of warranty or negligence is exclusively limited, at Metals, Inc. option, to the replacement of goods not complying with this agreement, the repayment of, or crediting Buyer with an amount equal to the purchase price of such goods, or repairing or arranging for repair to the goods. It Metals, Inc. requests the return of the goods, the goods will be redelivered to Metals, Inc. in accordance with Metals, Inc. instructions. The remedies contained in this paragraph constitute the sole recourse of buyer against Metals, Inc. for breach of any of Metals, Inc. obligations under the sales contract, whether of warranty or otherwise. As long as Metals, Inc. makes a good faith effort to rectify any breach, the remedies provided for herein shall be deemed not to fail to their essential purpose.
- 16. Selection
Buyer represents that the goods sold hereunder are fit for their actual or intended use and that buyer placed no reliance on Metals, Inc. skill or judgment in selecting suitable goods or materials or in the design of suitable goods and materials buyer represents that the use and installation of the goods shall be made in compliance with all applicable government requirements. Buyer will defend, indemnify and hold harmless Metals, Inc. its successors, assigns and subsidiaries from and against all cost (including at attorney’s fees), damages and liabilities resulting from actual or alleged claims asserted to any penalties proposed or assessed Metals, Inc. for any alleged violation of any federal, state, or local law, regulations or standard, by reason of or in connection with any use of the goods delivered hereunder.
- Choice of Law
This agreement and matters connected with the performance thereof shall be constructed in accordance with, and governed by, the law of the State of Ohio as if it were executed and performed entirely within the State of Ohio further, it shall be constructed to be between merchants.
Metals, Inc. specifically represents that any goods to be delivered hereunder will be produced in compliance with the requirements of the Fair Labor Standards Act of 1939, as amended. Any assignment of this agreement or any rights or obligations thereunder by the buyer without the written consent of Metals, Inc. shall be void. Metals, Inc. reserves the right to correct all typographical or clerical errors which may be present in the process or specifications. The waiver by Metals, Inc. of any breach to these terms and conditions shall be limited to the particular instance and shall not operate or be deemed to waive any future breach of the same provision or any other occasion, nor operate as a waiver of Metals, Inc. right to enforce any right by such remedies as may be appropriate. The rights and remedies of Metals, Inc. under these terms and conditions shall be cumulative and the exercise of any of them shall not be exclusive of any other right or remedy provided herein or allowed by law. This document contains the entire and exclusive agreement between the parties and is not subject to modifications except by written agreement signed by both parties.