Terms and Conditions
AGREEMENT AS TO STANDARD TERMS AND CONDITIONS OF SALE
This Agreement as to Standard Terms and Conditions of Sale ("Agreement"), by Rapid Metals, LLC ("Seller") and any entity, person or party (the "Buyer"), that purchases any goods or services from Seller.
Any sales by Seller and its affiliates are made subject to the following terms and conditions. Seller expressly rejects any different or additional terms or conditions contained in any document submitted by Buyer. Seller's provision of credit, acceptance of any purchase order and/or sale of any goods are expressly made conditional on Buyer's assent to these terms and conditions.
1. TERMS OF PAYMENT: Subject to the provisions of Section 3 below, Buyer shall pay the net invoice amount in full within 30 days from the date of invoice, less 1% if paid in full within 10 days of the date of the invoice date. Buyer agrees to pay interest on all amounts not paid within 30 days at the rate of 8%, or the maximum amount provided by law. In the event Buyer fails to make payment in full within the time period set forth on any invoice or within the time period expressly agreed upon in writing by the parties, such failure to pay on time constitutes a material breach of contract by Buyer. If Buyer breaches any contract with Seller, Seller is entitled to suspend production, shipment or delivery under this or any other contract between Buyer and Seller. In addition, Buyer shall pay to Seller interest on the unpaid amount at the maximum rate permitted by law, and Seller shall also have, in addition, all other remedies permitted to Seller by law, equity and this contract.
No payment by Buyer or receipt by Seller of a lesser amount than then due and owing by Buyer pursuant to all outstanding invoices shall be deemed to be other than on account of the earliest dated invoices, nor shall any endorsement or statement on or accompanying any check or other form of remittance by Buyer be deemed an accord and satisfaction without Seller's written consent and Seller may accept such check or other form of remittance as partial payment without prejudice to Seller's right to recover the balance of such invoice amounts or pursue any other remedy provided by law or equity.
2. ACCEPTANCE OF GOODS. Buyer agrees that it has accepted the goods described in Seller's Invoice to Buyer upon a transfer of ownership of the goods, delivery of the goods or any other receipt of the goods by Buyer, whichever occurs first in time. The risk of loss of the goods shall pass to Buyer upon acceptance of the goods, as described herein.
3. CREDIT APPROVAL: Performance of work and shipment of material will at all times be subject to approval by Seller's Credit Department. Seller may at any time condition its performance upon receipt of advanced payment, acceptable security, or agreement to other reasonable credit related terms and conditions. The Seller may decline to make any shipment or delivery or perform any work based upon Seller's failure to approve Buyer for credit. Buyer represents that in placing its order it is not insolvent as that term is defined in the Uniform Commercial Code Section 1-201, and, should it become insolvent before delivery of the goods, it will immediately notify Seller and not accept such goods. Failure to notify Seller shall be deemed to constitute a written representation of Buyer's solvency as of the date of shipment.
4. ACCEPTANCE OF ORDERS: All orders are received subject to acceptance and shall be accepted only by authorized personnel of Seller on Seller's acknowledgement forms for shipment when available and at Seller's prices in effect at time of shipment unless otherwise stated. All orders must be firm commitments giving complete item description including quoted prices, when applicable, quantity and shipping requirements. If there is a conflict between the specification referenced in an order and the exact requirements contained in an order, Seller has the option to ship either product. Any ambiguities contained in an order will be construed against the Buyer.
a. Shipment schedules are approximate and are based upon market and production conditions at the time of Seller's acceptance of Buyer's order. Buyer agrees that Seller shall not be liable for failing to meet any shipment or delivery schedules. Buyer further agrees that time is not of the essence of any order placed with Seller.
b. In the event either party's performance hereunder is delayed or made impossible or commercially impracticable due to causes such as fire, explosion, strike or other difference with workers, shortage of energy sources, facility, material or labor, delay in or lack of transportation, temporary or permanent plant shutdown, breakdown or accident, compliance with or other action taken to carry out the intent or purpose of any law, regulation, or other requirement of any governmental authority, or any cause beyond that party's reasonable control, that party shall have such additional time within which to perform this contract as may be reasonably necessary under the circumstances. However, the obligation of Buyer to pay for goods delivered is never suspended. In addition, if due to force majeure or any other cause, Seller is unable to produce sufficient goods to meet all demands from customers and internal uses, Seller shall have the right to allocate production among its customers and plants in any manner in which Seller may determine to be equitable.
c. Buyer shall promptly inspect the goods upon delivery. If upon receipt by Buyer, goods shall appear to not conform to the contract, Buyer shall immediately notify Seller of such condition and afford Seller a reasonable opportunity to inspect the goods and cure. Buyer agrees to immediately provide Seller with traceability of any rejected goods. Failure to provide traceability of any rejected goods will be deemed an acceptance of the goods. No goods shall be returned without Seller's prior written consent. Custom manufactured goods are not returnable.
6. CLAIMS: The liability of Seller arising out of the supplying or selling of the goods, or their use by the Buyer, or the Buyer's customers, and whether based under breach of contract or warranty, in tort (including negligence or strict liability), or otherwise, shall not in any event exceed the purchase price of the goods. The remedies set forth above shall constitute the sole and exclusive remedies of Buyer and the sole and exclusive liability of the Seller whether the claims of Buyer are based on contract, warranty, tort (including negligent or strict liability) or otherwise. ALL CLAIMS MUST BE MADE TO SELLER WITHIN 60 DAYS OF RECIEPT OF THE MATERIAL. SELLER RESERVES THE RIGHT TO INVESTIGATE ANY AND ALL CLAIMS. Under no circumstances shall the Seller be liable to the Buyer for any special, consequential, incidental or punitive damages, whether based upon loss of goodwill, lost profits, work stoppage, personal injury, disease, death, property damage, delay, impairment of other goods, property damage, loss of use, expense of recall or otherwise.
7. FAILURE TO ACCEPT AND CUSTOMER CANCELLATIONS
a. Except where and only to the extent that Seller has agreed in writing to accumulate goods for Buyer's account for later shipment, and without otherwise limiting the Seller's remedies available under the law, if Buyer requests a delay in shipment otherwise ready for shipment, or Buyer fails to release goods for shipment or buyer fails to provide information or documentation necessary for the delivery of goods otherwise ready for shipment, then Seller shall have the following rights and remedies: (1) goods may be placed in storage and Seller may charge Buyer reasonable storage fees commencing 3 days after Seller's notice to Buyer that the goods are available for shipment, and (2) Seller may immediately invoice Buyer for the goods. Failure to accept goods ready for shipment will not release Buyer from its obligation to pay for the goods in accordance with Paragraph 1 above.
If Buyer does not intend to pick up goods ready for shipment, Buyer must immediately notify Seller of such delay.
b. Without otherwise limiting Seller's remedies, if Buyer cancels an order, Seller may impose and Buyer agrees to pay a reasonable cancellation fees within Seller's discretion. Termination and cancellation charges will be invoiced to Buyer at 100% of the selling price if the manufacture or processing has commenced. If Buyer cancels any order and Seller re-sells the goods, Buyer shall be responsible, at a minimum, for a price difference received by Seller. This provision does not limit any other remedies that Seller has at law or in equity.
c. Buyer cannot modify, cancel or otherwise alter orders without Seller's written consent. Any such cancellation, modification, or alteration shall be subject to conditions as negotiated at such time, which shall include protection of Seller against loss.
8. REMEDIES UPON FAILURE TO PAY: In the event Buyer fails to make payment of the purchase price or any portion thereunder when due, Seller shall have the right to: (1) suspend performance with respect to any pending order or shipment of products, and (2) employ an attorney to collect the balance due and Buyer agrees to pay all collection costs and expenses incurred by Seller, including Seller's reasonable attorney fees.
9. WARRANTY: DISCLAIMERS: SELLER WARRANTS THAT THE GOODS FURNISHED HEREUNDER WILL BE PRODUCED AND TESTED IN ACCORDANCE WITH SELLER'S PUBLISHED SPECIFICATIONS. HOWEVER, NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE NOR ANY OTHER REPRESENTATION OR WARRANTY (OTHER THAN TITLE), WHETHER EXPRESS OR IMPLIED, IS MADE RESPECTING SAID GOODS, OR THE PRODUCTION THEREOF AND THERE ARE NO OTHER WARRANTIES EITHER EXPRESSED OR IMPLIED BY FACT OR LAW.
10. APPLICABLE LAW. This Agreement shall be governed by the law of the State of Michigan. Buyer, acting for itself and successors and assigns, herby expressly and irrevocably consents to the jurisdiction of the state and federal courts of Michigan for any litigation which may arise of out of be related to this Agreement. Buyer waives and objection based upon forum non-convenience or any objection to venue of any such action. Any action or suit initiated by Buyer with this Agreement must be brought in a federal or state court located in Oakland County, Michigan. BUYER EXPRESSLY WAIVES TRIAL BY JURY.
11. WAIVERS: Any waiver by Buyer or Seller of a breach of a term or condition of this Agreement shall not be construed as a waiver of any other breach of any other term or condition, or a waiver of any similar future breach of the same term or condition.
12. TERM AND TERMINATION. The term of this Agreement shall begin upon acceptance of Seller of any order from Buyer and shall continue until terminated by either party upon 30 days written notice. Any termination of this Agreement shall be in writing. The written notice must specifically reference this Agreement, state that this Agreement is being terminated and be sent via First Class U.S. Mail, certified, return receipt requested, to Seller's headquarters, attn.: Daniel Butler. The termination will not change or modify the obligations or rights of the parties with respect to the sale of goods that were agreed upon prior to the effective date of termination.
13. ASSIGNMENT. Buyer may not assign its rights or obligations hereunder without the prior written consent of Seller.
14. CONDITIONS INCORPORATED BY REFERENCE: Any clause required to be included in a contract of this type by any applicable law or administrative regulation having the effect of law shall be deemed incorporated herein.
15. INTEGRATION AND NOT ORAL MODIFICATION. This Agreement contains the entire understanding between the parties with respect to the transactions and subject matter contemplated hereby and supersedes, merges, and replaces all prior and contemporaneous agreement and understandings, oral or written, between the parties. This Agreement may not be orally amended or changed. This Agreement may be amended or changed only by written instrument executed by the party waiving such provision. This Agreement may be terminated only in the matter set forth in Section 12 above.