Terms and Conditions

General Terms and Conditions

 

The following General Terms and Conditions  (“General Terms”) are applicable to the sale of all Products (as hereinafter defined) by Consolidated Mill Supply, Inc. an Illinois corporation (“Seller”), to any purchaser thereof (“Buyer”).  All of the product or products and/or service or services, the design and/or sale of which is the subject of such Seller’s Proposal (as hereinafter defined) or Purchase Order (as hereinafter defined) are collectively referred to as “Products” and individually as a “Product.” These General Terms are subject to any additional terms contained in any agreement, statement of work, amendment, addendum or other writing signed by Seller and each such writing, together with these General Terms, is deemed to incorporate these General Terms as if fully set forth therein.  All Seller’s Proposals (as defined herein) or Purchase Orders (as defined herein) are subject to approval by Seller at its corporate headquarters in Schaumburg, Illinois.  Any amendment, waiver or other alteration of the General Terms by Seller shall be effective only if made in a writing signed by a designated officer or director of Seller, and any attempt by Buyer to alter such terms and conditions with printed Purchase Orders, acknowledgments or similar documentation shall be void.

 

1.  Entire Agreement.  These General Terms, along with any agreement, statement of work, amendment, addendum or other writing signed by Seller, constitute the complete and exclusive statement of the agreement (the “Agreement”) between Seller and Buyer with respect to, and shall exclusively govern, the sale of the Product and other personal property by Seller to Buyer in connection with, or as contemplated by, the Seller’s written or oral proposals, quotations and sales, including contracts for sales, to Buyer (any such item being a “Seller’s Proposal”) and/or Buyer’s written or oral purchase orders or similar form to Seller (any such item, written or oral, being a “Purchase Order”), and such Agreement shall continue in effect until terminated in writing by Seller.  In the event of a conflict between the terms and conditions contained in the Seller’s Proposal or final order acknowledgement signed by Seller and those contained in these General Terms, the terms contained in the Seller’s Proposal or final order acknowledgement signed by Seller shall govern.  Notwithstanding any different or additional terms or conditions contained in Buyer’s Purchase Order or other communication to Seller related to the Products, Seller accepts Buyer’s Purchase Order only on the condition that Buyer expressly accepts and assents to these General Terms.  In the absence of Buyer’s acceptance hereof, Seller’s commencement of performance or Seller’s acknowledgement of Buyer’s Purchase Order, shall be for Buyer’s convenience only and shall not be construed as Seller’s acceptance of any of Buyer’s terms.  Any confirmation by Buyer that states different or additional terms shall operate as an acceptance of these General Terms, but Seller hereby objects to and rejects such different or additional terms and any such different or additional terms shall be deemed to be material alterations and notice of objection to them is hereby given.  In addition, Buyer’s acceptance of any Products shall be deemed to be acceptance of all of the General Terms.  Seller hereby objects to any additional, contradictory or different terms contained in any initial or subsequent Purchase Order from Buyer pertaining to the Products, including, but not limited to, any indemnification or compliance warranty provisions.  Any notice by Buyer objecting to these General Terms must be in a writing separate from any Purchase Order.  Seller’s failure to object specifically to provisions contained in any Purchase Order shall not be deemed a waiver of the provisions contained in these General Terms. 

 

2.  Delivery Period.  If shipments exceed the end of the Delivery Period they may be subject to additional interest expense.  Buyer shall reimburse Seller for any such additional interest expense in accordance with paragraph 5 of the General Terms.

 

3.  Quality.  Quality is final at Point of Origin as defined in the Agreement.  Buyer shall have the right to raise claim to the Seller with respect to quality of Products not later than five (5) business days after arrival at Point of Origin.  The Products shall be deemed accepted by Buyer unless Buyer provides Seller, within five (5) days after arrival at Point of Origin, a written notice specifying all defects or discrepancies in the quality or quantity of Products.  Seller shall give Buyer reasonable access to the Products upon request at the Point of Origin for testing purposes.  Buyer shall permit Seller to inspect and correct any allegedly damaged or otherwise nonconforming Products.

 

4.  No Re-sale.  Buyer acknowledges and agrees that the Products subject to this Agreement are purchased for consumption by the Buyer, and may not be resold or otherwise distributed to anyone without the Seller’s express written consent.  In the event that the Buyer distributes or sells the Products to anyone without the Seller’s prior written consent, Buyer shall be deemed to be in breach of this Agreement with the Seller.  Buyer further acknowledges that in the event Buyer resells or otherwise distributes the Products to anyone without the Seller’s express written consent it will cause injury to Seller.  Buyer and Seller hereby agree that the actual damages which Seller would suffer as a result of Buyer’s default are extremely difficult and impractical to ascertain inasmuch as it is difficult to evaluate the damage to Seller’s business interests that would be caused as the result of Buyer’s breach of the Agreement.  Therefore, Buyer and Seller agree that, in the event of such breach, Buyer shall be liable to Seller for liquidated damages in an amount no less than 25% of the total value (quantity x price) of the Agreement, and that such liquidated damages are a reasonable estimate of the amount such damages and Seller shall be entitled to receive and retain such liquidated damages in lieu of all other damages or remedies that would otherwise be available to Seller, except as otherwise set forth within this Agreement.  Buyer shall pay Seller the liquidated damage amount no later than five (5) business days after the date on which Seller makes its written liquidated damage claim against Buyer.  In addition to the foregoing, Buyer shall reimburse Seller for all costs and expenses, including reasonable attorney’s fees, incurred by or on behalf of Seller in enforcing this provision and collecting any amounts owed by Buyer under the terms of this paragraph.

 

5.  Payment.  Buyer acknowledges and agrees that all credit sales under this Agreement are subject to availability of credit insurance from Seller’s regular credit insurer.  Buyer further agrees that any uninsured amount of its aggregate debt to Seller shall be secured by a letter of credit or a bank guarantee from a reputable bank acceptable to Seller. Without prejudice to the foregoing, and unless otherwise agreed to in writing, all invoices are due and payable net thirty (30) days from date of invoice.  All payments shall be made in U.S. dollars.  Buyer’s outstanding unpaid balances shall be subject to a finance charge of 30-day Libor plus three and one-half percent (3-1/2%) per month until paid in full (or such lower rate as may be the maximum permitted by law).  Buyer agrees to pay Seller’s cost of collection (including reasonable attorneys’ fees), if applicable.  Payments received may be applied by Seller against any obligation owed by Buyer to Seller.  Seller may refuse or delay shipments if Buyer fails to pay promptly any payments due Seller.  If Seller shall, in its sole discretion, deem itself to be insecure regarding Buyer’s ability to fulfill the terms of payment herein specified, whether due to Buyer’s financial condition or any other reason, Seller may modify the credit terms herein, including full or partial payment in advance of delivery.  Any authorized early payment discounts must be taken at the time of invoice payment and will be calculated from the invoice date to the date payment is received by Seller.  In the event Buyer fails to make timely payment on any invoice within 30 days from the date of invoice, then Buyer shall be in default of this Agreement and Seller may, in its sole discretion and without notice to Buyer, immediately cease any and all duties or obligations it has to Buyer under this Agreement, including the additional shipment of Product.  

 

6.  Purchase Money Security Interest.  As security for the Buyer’s performance of its obligations hereunder, Seller hereby reserves, and Buyer hereby grants to Seller, a purchase money security interest in all Products sold by Seller to Buyer, and in the proceeds thereof.  In the event of default by Buyer in any of its obligations to the Seller hereunder, Seller may repossess the Products sold hereunder without liability to the Buyer.  A copy of the invoice covering the Products may be filed with appropriate authorities at anytime as a financing statement to perfect Seller’s security interest.  Buyer hereby authorizes Seller to prepare, execute and file such UCC-1 financing statements and any instruments that Seller may reasonably require to perfect Seller’s security interest in the Products sold or delivered by Seller to Buyer and any proceeds thereof. Seller shall have all of the rights and remedies of a secured party under the Uniform Commercial Code, which remedies shall be cumulative and not exclusive.

 

7.  Price & Taxes.  Unless otherwise specified in the Agreement, all prices are F.O.B. Point of Origin and cover only the Products expressly specified and, unless otherwise expressly stated or Buyer provides Seller with valid tax exemption certificates, do not include any freight, taxes, duties, tariffs or other additional costs, all of which shall be borne by Buyer.  Unless otherwise specified in the Seller’s Proposal, written quotations are valid for forty-eight (48) hours from issuance.  After such 48-hour period, prices are subject to escalation in accordance with any cost increases incurred by Seller and Buyer agrees to pay such increased price in accordance with these General Terms.

 

8.  Delivery.  Unless otherwise specified in the Agreement, all Products are sold on an  F.O.B. Delivery Point basis.  Title to and risk of loss shall pass to Buyer upon delivery of Products to carrier.  Seller shall have the right to deliver all Products covered hereby at one time or in partial shipments from time to time, within the agreed time for delivery.  All delivery dates are approximate, and Seller shall not be liable for damages or costs which arise in connection with the delivery of goods after the date stated on any Proposal, Purchase Order or other document.  Delivery dates are further dependent upon the prompt receipt by Seller of all information required by Seller to proceed with work immediately and without interruption.

 

9.  Force Majeure.  Seller shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Seller, including, but not limited to, force majeure, acts of God, acts or omissions of Buyer, acts of civil or military authorities, fire, strikes, power surges or outages, epidemics, quarantine restrictions, flood, natural disasters, riot, war, delays in transaction or inability to obtain necessary labor, materials or supplies or any cause which renders Seller’s performance commercially impractical under Section 2-615(a) of the Uniform Commercial Code, as amended.  Notwithstanding anything herein or any other agreement of the Buyer and Seller, all additional costs or expenses incurred by, or imposed upon, Seller as a result of any cause under this paragraph shall be the sole responsibility of Buyer and such additional costs or expenses shall be paid by Buyer to Seller pursuant to paragraph 5 of the General Terms. 

 

10.  Cancellation.  Once a Purchase Order is accepted by Seller, it may not be cancelled or changed by Buyer, nor shall Buyer be entitled to delay shipment or performance, except with the written consent and upon terms and conditions approved by Seller in writing.  If Seller consents to the cancellation of a Purchase Order for Products pursuant to the foregoing sentence, Buyer shall pay to Seller within thirty (30) days of such cancellation, all costs and expenses incurred by Seller in connection with Buyer’s Purchase Order (including without limitation, any restocking fee and reasonable cancellation charges) on an amount not less than fifteen percent (15%)] of the total amount of the canceled Purchase Order.  Any extra cost incurred by Seller to meet Buyer’s request for rescheduling/cancellation will be Buyer’s responsibility.

 

11.  Limited Warranty; Exclusive Remedy.  Seller warrants that the Products will conform to Seller’s specifications, as in effect at the time of shipment, and are free from defects in material and workmanship for a period of five (5) days from arrival at the Point of Origin.  Seller’s sole obligation under this warranty shall be at its option to repair or replace any Product or part thereof which proves to be other than as warranted, provided that written notice of the alleged defect shall have been given by Buyer, to Seller prior to five (5) days after delivery at the Point of Origin.  This warranty does not extend to any Products or parts thereof which have been installed, operated, maintained, repaired or altered improperly or which have been the subject of misuse, accident or neglect; nor does the warranty apply to normal wear and tear resulting from use of the Products.  Seller also warrants that it will convey good title to the Products and that such Products will be delivered free of any security interest or other lien or encumbrance.  EXCEPT AS SET FORTH IN THIS SECTION 11, SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS.  SELLER DISCLAIMS ANY WARRANTY WITH RESPECT TO THE MERCHANTABILITY OF THE PRODUCTS OR THE FITNESS OF THE PRODUCTS FOR ANY PARTICULAR PURPOSE OR USE OF BUYER AS WELL AS ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS ARISING BY ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  SELLER FURTHER DISCLAIMS ANY WARRANTY WITH RESPECT TO THE CONFORMANCE OF THE PRODUCTS WITH ANY REQUIREMENTS OR SPECIFICATIONS PROVIDED BY BUYER, UNLESS THE CONFORMANCE WITH SUCH REQUIREMENTS OR SPECIFICATIONS HAS BEEN SPECIFICALLY AGREED TO BY SELLER IN WRITING. Any cause of action for breach of the foregoing warranty shall be brought within one (1) year from the dateof delivery at the Point of Origin.  BUYER’S SOLE REMEDY IN THE EVENT OF A BREACH OF THE FOREGOING WARRANTIES IS THE REPAIR OR REPLACEMENT OF THE AFFECTED PRODUCT BY SELLER UPON RETURN OF THE PRODUCT, TRANSPORTATION CHARGES PREPAID TO SELLER AND AFTER, A PRO-RATA CHARGE TO BUYER FOR USE OF THE PRODUCT PRIOR TO ITS RETURN.

 

12.  Limitation of Liability.  IN NO EVENT SHALL SELLER’S LIABILITY ARISING IN CONNECTION WITH OR UNDER THIS AGREEMENT (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT LIABILITY, MISREPRESENTATION, FRAUD, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LAW) EXCEED THE PURCHASE PRICE OF THE PRODUCTS. 

 

13.  Setoff.  Seller shall have the right at any time and without notice, to set off any liability or obligation of Buyer to Seller against any liability or obligation of Seller to Buyer.  Under no circumstances will Buyer have a right of setoff against Seller.

 

14.  Disclaimer of Consequential Damages; Buyer Indemnity.  IN NO EVENT SHALL SELLER BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION, BREACH OF ANY OBLIGATION OR WARRANTY IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH.  “CONSEQUENTIAL DAMAGES” FOR PURPOSES HEREOF SHALL INCLUDE WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT, OR LOSSES SUSTAINED AS THE RESULT OF INJURY TO ANY PERSON, OR LOSS OF OR DAMAGE TO ANY PROPERTY (INCLUDING, WITHOUT LIMITATION, PROPERTY HANDLED OR PROCESSED THROUGH THE USE OF THE GOODS), DAMAGES OR LOSSES RESULTING FROM CLAIMS OF OTHER PERSONS AGAINST BUYER, OR DAMAGES OR LOSSES SUSTAINED AS THE RESULT OF WORK STOPPAGE.  BUYER SHALL INDEMNIFY SELLER its officers, directors, employees and agents AGAINST ALL LIABILITY, COST OR EXPENSE WHICH MAY BE SUSTAINED BY SELLER ON ACCOUNT OF ANY SUCH LOSS, DAMAGE OR INJURY.

 

15.  Compliance with Laws.  Buyer represents and warrants that Products will not be used, resold, transferred, exported or reused in any way by Buyer in violation of any laws, regulations of any federal, local, state or other governmental entity including export/import controls imposed by the U.S. Government (collectively, the “Regulations”).  In the event Buyer knows or is aware of any Regulation that would adversely impact the transaction(s) contemplated by Seller’s Proposal and/or Buyer’s Purchase Order, Buyer shall immediately advise Seller of the same.  If the Seller, in its sole discretion, determines that the effect of the Regulations is a material increase in Seller’s risk with respect to such transaction, the Seller may, without cost, liability or penalty of any kind, withdraw Seller’s Proposal and/or revoke its acceptance of Buyer’s Purchase Order.

 

16.  Disputes and Governing Law.  Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and final judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  Any arbitration proceeding shall be conducted in Chicago, Illinois and Illinois law shall apply. No action, regardless of form, arising out of, or in any way connected with, Products may be brought by Buyer more than one (1) year after the cause of action has accrued.

 

17.  General.  This Agreement shall be binding upon and inure to the benefit of Buyer and Seller, their successors and permitted assigns.  No waiver by either party of any breach of these General Terms shall constitute a waiver of any other breach.  If any provision hereof is held to be invalid or otherwise unenforceable for any reason, all other terms and remaining conditions will continue to be in force.  Any clerical errors are subject to correction.