All sales of goods and services by Industrial Tube & Steel Corp. (the “Company”) to you (the “Customer”) are subject to the terms and conditions set forth hereinbelow, and these terms and conditions are hereby incorporated into each quotation, proposal, purchase order, sales order, invoice and similar document related thereto (collectively, an “Order”):
The acceptance of any Order from Customer is conditioned upon the acceptance by Customer of all terms and conditions contained herein. Any new, inconsistent, or additional terms contained in the Customer's Order are hereby rejected unless expressly accepted by the Company in writing specifically referencing these terms and conditions andthe new, inconsistent, or additional terms within seven (7) days after the Company's receipt of such Order. The terms and conditions as stated herein shall not be modified other than in writing signed by the Company and Customer and specifically referencing these terms and conditions.
2. Title and Risk of Loss
Unless otherwise stated in an accepted Order, risk of loss for all goods sold hereunder shall pass to Customer upon delivery to carrier F.O.B. the Company's plant; provided, however, if the Company has acquired special order inventory to complete Customer's current Order or anticipated Orders, the risk of loss to all such special order inventory shall pass to Customer upon purchase of the special order inventory by the Company. Title for all goods sold hereunder shall pass to Customer only upon payment in full of the applicable invoice for such goods.
3. Prices and Taxes
Unless otherwise stated in an accepted Order, all prices are F.O.B. the Company's plant. The amount of any local, state or federal tax levied on the goods ordered shall be added to the amount paid by Customer and shall remain the sole responsibility of Customer. Payment for all special order inventory acquired by the Company to complete Customer's current Order or anticipated Orders shall be due upon demand by the Company. Any portion of the price which is not paid in accordance with the terms of payment herein stated shall bear interest from the due date at the rate of 1-1/2% per month until paid. The price quoted herein is subject to applicable price adjustments in effect at the time of shipping. In the event the Company incurs any cost, expense and/or fee (including, but not limited to, reasonable attorney fees, court costs and related expenses) in collecting amounts due hereunder or in the enforcement of its rights hereunder ("Enforcement Costs"), then Customer shall reimburse the Company for all such Enforcement Costs upon demand.
4. Delay in Performance
The Company shall not be responsible or liable for any delays or failures in the manufacture or delivery of the goods due to any cause or condition beyond the control of the Company, including, without limitation, strikes or labor difficulties, fires, floods and other actions of the elements, inability to secure transportation, shortage of materials or equipment, riots or other civil commotions, pandemics, epidemics or similar health crisis and acts of God and war.
5. Cancellation or Change Orders; Delivery
No Order may be withdrawn or canceled by Customer, nor may it be deferred when ready, unless the Company shall have previously approved such withdrawal, cancellation or deferral in writing and the Company shall have been paid a withdrawal, cancellation or deferral charge of a reasonable amount acceptable to the Company. In the event Customer shall request changes in its Order after receipt thereof by the Company, Customer shall be responsible for all charges and expenses reasonably incurred by the Company with respect to such changes. Any dates or schedules which may be specified for the delivery of the goods purchased hereunder have been stated only approximately and are estimated from the date of receipt of Customer's Order, with complete specifications, designs, samples and other information reasonably requested by the Company to be provided in order to proceed with the manufacture and delivery of the goods. The Company shall not incur any liability, either direct or indirect, nor shall any Order be canceled, as a result of any delays in meeting such dates or schedules.
6. Limited Warranty
The Company makes no warranty whatsoever, except as to title, with respect to goods manufactured and/or designed to Customer's or any other party's specifications or with respect to any material selection by any party other than the Company, and Customer shall, at its own expense, defend and save the Company harmless from and against any claim, suit, expense or otherwise which shall be asserted or brought against the Company by reason of the Company's manufacture or sale of such goods. All goods are sold and samples of goods provided with the understanding that Customer has independently determined the suitability or compatibility of such good for its purposes. Any statements, technical information or recommendations concerning goods sold or samples provided by the Company are based upon data provided to the Company by its suppliers and believed to be accurate, but do not constitute a guarantee or warranty. The Company makes no representation or warranty that the delivery or subsequent use of the goods ordered shall be free of the claim of any third party by way of infringement.
The Company, at its sole option, will replace any of the goods which fail to meet their specifications or which are defective due to the Company's materials or workmanship; provided, however, if the Company determines that replacement is not commercially practicable, the Company shall issue a credit in favor of Customer in an amount not to exceed the purchase price of the non-conforming goods. All claims for breach of this warranty must be made to the Company within ten (10) days after the date of shipment of the goods to which the claim relates and must be returned at Customer's expense to the Company's plant in accordance with the Company's written material return authorization and instructions and the provided label. The Company's warranty shall extend only to the original Customer from the Company. The Company's warranty does not cover the effects of normal wear, tear, deterioration or abuse of the goods or the effects of improper shipping, storage or handling of the goods.
7. Limitation of Liability
In no event shall the Company be liable to Customer or to any third party for liquidated, consequential, indirect, punitive, incidental or special damages, including, without limitation, for lost profits, lost revenue, loss of data or loss of use, resulting from or in any manner related to the goods, their delivery, non-delivery, design, use, or any inability to use the same, whether such damages be claimed under contract, tort or any other legal theory. Customer understands that the sole and exclusive remedy of Customer shall be the replacement of any defective goods pursuant to the warranty provision hereinabove contained. Should the goods prove so defective, however, as to preclude the remedying of warranty defects by replacement, Customer's sole and exclusive remedy and the Company's sole and exclusive liability shall be a credit in favor of Customer in an amount not to exceed the purchase price of the non-conforming goods upon Customer's return of the non-conforming goods to the Company. This limitation of liability shall survive the termination, expiration or cancellation of these terms and conditions or any transaction pursuant hereto.
8. Third Party Participation
The Company is not responsible for any delays caused by third parties utilized by the Company to produce its goods or the inability of any such third parties to deliver their goods or services to the Company. It is understood by Customer that the Company's quote may be based on a quote from a third party and the Company shall not be bound by its own quote if any third party fails to provide its goods or services as promised or agreed.
Customer shall indemnify the Company against all claims, losses, liabilities and expenses (including, without limitation, reasonable attorney fees, court costs and expenses) on account of any damaged property or injury or death of persons (including, without limitation, Customer's employees) arising out of the Customer's loading, unloading, storage, handling, use, implementation or disposal of the goods arising out of any infringement claim where the Company was not responsible for the design of the goods, except for any portion of damages attributable to the Company's gross negligence or intentional misconduct. This indemnity obligation of Customer will survive the expiration, termination or cancellation of these terms and conditions or any transaction pursuant hereto.
There are no understandings between the parties as to the subject matter hereof other than as set forth herein. All previous communications between the parties concerning the subject matter hereof, whether verbal or written, including, but not limited to Customer's Order, are hereby abrogated and withdrawn, and these terms and conditions constitute the whole of the agreement between the parties. Delivery of an Order by Customer shall be deemed to be an acceptance by Customer of these terms and conditions. Any new, inconsistent or additional terms or conditions in an Order, regardless of whether such terms and conditions are material or not, shall not be binding unless expressly accepted in writing by the Company as stated in Section 1 above and the Company specifically objects to the inclusion of any new, inconsistent, or additional terms and conditions by Customer in any such Order. If Customer does include different or additional terms and conditions in its Order, neither the Company's delivery of all or part of the goods, nor any other action except a written notice from the Company within the time period and other terms set forth in Section 1 above, shall constitute acceptance of such new, inconsistent or additional terms, but instead these terms and conditions shall govern.
These terms and conditions, and any transaction related hereto, shall be construed in accordance with, and shall be governed by,the laws of the State of Ohio. The parties agree that the United Nations Convention of Contracts for the International Sale of Goods will not apply to these terms and conditions or any transactions pursuant hereto. Further, Customer and the Company agree to submit to the jurisdiction of the appropriate local, state or federal courts within Portage County, Ohio for purposes of resolving any dispute or claim arising in connection with said transaction or these terms and conditions. Nothing herein shall be construed as creating any act or beneficial right in or on behalf of any third party. The failure of either party to insist or enforce in any instance strict performance of these terms and conditions or to exercise any rights hereunder conferred, shall not be construed as a waiver or relinquishment to any extent of its right to assert or rely upon such terms or rights on any future occasion.
12. Payment of Less Than Full Amount
In the event Customer seeks to make payment on an invoice from the Company in an amount less than the full amount of the invoice and Customer intends such payment to be in full satisfaction of the invoice, Customer must send such payment in writing to Industrial Tube and Steel Corp., 4658 Crystal Pkwy, Kent, Oh. 44240, Attention: Co-President