Continental Steel & Tube/Terms and Conditions of Sale and Delivery
No claims will be accepted after 10 calendar days of receipt. Damaged freight must be marked on the bill of lading or turned away. Damage claims not marked on BOL will not be accepted. Cancellation of any order will be subject to a minimum 20% restock fee. Any material altered from the original form is final sale and cannot be returned. Any nonstock mill orders are final sale at time of placement and cannot be cancelled.
Payments past 30 days subject to 1.5% service charge. In the event Continental Steel & Tube Co. is forced to retain the services of a third party to collect the amount owed on this invoice, all parties who hold a financial interest in the property listed on the invoice will be required to indemnify Continental Steel & Tube Co. against all costs incurred in the process of collecting the amount owed. This is to include but is not limited to; collection costs, attorney fees, court costs, pre-judgment interest and post-judgment interest.
Quotes valid 24 hours and material is subject to prior sale. All orders subject to management approval. All material subject to market and mill increases at time of shipment. Material quoted and or sold by Continental Steel & Tube Company or any division of Names, Names, Names INC. is not to be shipped nor transshipped to the following countries, CUBA, IRAN, NORTH KOREA, OR SYRIA AND ARE SUBJECT TO UNITED STATES EXPORT CONTROLS AND ANY EXPORT MUST BE IN COMPLIANCE WITH UNITED STATES LAW**
These terms and conditions of sale (“Terms”) are the only terms which govern the sale of the goods (“Goods”) by Names Names Names, Inc., d/b/a Continental Steel & Tube (“Seller”) to (“Buyer”). The accompanying (“Sales Quotation” and these Terms collectively, the “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, representations and warranties, both written and oral. These Terms prevail over any of Buyer’s general terms of purchase regardless whether Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms or conditions. All open quotations are valid for 24-hours unless expressly stated otherwise.
2. Price and Payment
Buyer shall purchase the Goods from Seller at the prices (“Prices”) set forth in Seller’s Sales Quotation are open and valid for a twenty-four (24) hour period unless expressly stated otherwise. Material is subject to prior sale.
- (a) in force as of the date Seller accepts Buyer’s purchase order. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, including taxes, insurance, freight, carriage, and warehousing if applicable.
- (b) Buyer shall pay all invoiced amounts due to Seller no later than thirty (30) days from the date of Seller’s invoice in US dollars unless Seller provides otherwise. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law, Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder. In the event Seller is required to collect any amounts due hereunder, all expenses incurred shall be taxable to and borne by Buyer who agrees to pay all such expenses including, without limitation, third-party collection agency fees and costs. In the event Seller is required to collect any amounts due hereunder, all expenses incurred shall be taxable to and borne by Buyer who expressly agrees to pay all such expenses including, without limitation, third-party collection agency fees and costs.
- (a) Delivery to Buyer shall be EXW (“Ex Works”), Incoterms® 2020, unless otherwise specified in the Quotation/PO. Title shall pass to Buyer once Seller makes Goods available to Buyer at quoted Delivery Point. Buyer shall take delivery of the Goods within 2 days of Seller’s written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all unloading/loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
- (b) Seller may, in its sole discretion, without penalty, make partial delivery of Goods to Buyer. Each delivery will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
- (c) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
- (d) Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
Goods sold are subject to shipping weight tolerances of +/- 10%, unless expressly stated otherwise. Any items open, altered or modified from their original form are final sale and non-refundable.
5. Export Compliance
- (a) Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer as well as any government import or export licenses and clearance. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance.
- (b) All transactions under this Agreement are subject to U.S. Government export statutes and regulations including, but not limited to: (i) the U.S. Export Administration Act; (ii) the Export Administration Regulations; (iii) the Arms Export Control Act; and (iv) the International Traffic in Arms Regulations (collectively, the “Export Regulations”).
- (c) It is Seller’s business practice to comply with all United States export controls, sanctions, and antiboycott laws and regulations, as well as those of other countries where Seller does business.
- (d) Buyer warrants and represents that under no circumstances will Buyer export, re-export, or conduct any other transaction contrary to the Export Regulations or contrary to the Seller’s policies governing international transactions.
- (e) Buyer acknowledges that Export Regulations prohibit Seller’s Goods from being exported or re-exported to embargoed destinations or used for any activities prohibited by any applicable United States Bureau of Industry and Security regulations (15 CFR, et. seq.) or delivered to individuals or entities listed on the United States Denied/Restricted Parties List.
- (f) Diversion contrary to United States law is strictly prohibited.
6. Title and Risk of Loss
Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Florida UCC.
7. Inspection and Rejection of Nonconforming Goods
- (a) Buyer shall inspect the Goods within fourteen (14) calendar days of invoiced shipping date. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
- (b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Seller shall issue a return materials authorization and Buyer will assist in coordinating pickup from Buyer. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
- (c) Buyer acknowledges and agrees that the remedies set forth herein are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided here, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
- (a) Seller warrants to Buyer that as of the date of shipment of the Goods (“Warranty Period”), that such Goods materially conform to the specifications set forth in Seller’s published specifications in effect as of the date of delivery.
- (b) Products manufactured by a third party (“Third Party Products”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in this Section. For the avoidance of doubt, Seller makes no representations or warranties with respect to any Third-Party Products, including any (a) warranty of merchantability or (b) warranty of fitness for a particular purpose whether express or implied by law, course of dealing, course of performance, or usage of trade.
- (c) The Seller shall not be liable for a breach of the warranty unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within fourteen (14) days of Buyer’s receipt of the materials; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective. If defective, Seller shall issue a return materials authorization and Buyer will assist in coordinating pickup from Buyer.
- (d) The Seller shall not be liable for a breach of the warranty if: (i) Buyer makes further use of Goods after giving notice; (ii) defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
- (e) Any Material altered from original for either before or after shipping is non-returnable and considered a final sale.
- (f) During the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
- (g) In no event shall Seller be liable to Buyer or any third party for any loss of use, revenue or profit, or for any consequential, indirect, incidental, special, exemplary, or punitive damages whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not Seller has been advised of the possibility of such damages.
- (h) THE REMEDIES SET FORTH IN THIS SECTION SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY.
Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; or (ii) has not otherwise performed or complied with these Terms, in whole or in part.
10. Nuclear Exclusion
In the event that Seller’s products are to be used directly or indirectly in any facility in which nuclear fuels or radioactive materials are used, produced, processed, stored, transported or handled in any way (a “Nuclear Facility”), the following additional terms and conditions set forth below shall also apply:
- (a) Any Goods requested to be repaired or replaced, whether under warranty or otherwise, shall be fully decontaminated without any cost to Seller and to the extent necessary to permit Seller to affect such repair or replacement.
- (b) Buyer agrees to defend, indemnify and hold harmless Seller from and against
- i. all claims of loss of or damage to real and personal property, including damage to any Nuclear Facility, and
- ii. all claims for personal injury, including personal injury to employees of any Nuclear Facility, arising out of any and all nuclear energy and radiation hazards or out of nuclear incidents.
- (c) Buyer shall secure all necessary insurance carrier disclaimers waiving all rights of recovery and subrogation against Seller in compliance with paragraph 10(b), above as Buyer agrees to defend, indemnify and hold harmless Seller from and against all claims which may be asserted against Seller by such insurance carrier or others.
No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof.
These Terms may only be modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
13. Force Majeure
No party shall be liable or responsible to the other party, nor be deemed to have breached this Agreement, for any failure or delay in fulfilling any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) control, including, without limitation, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, explosion, epidemic, pandemic, or virus; (c) war, invasion, hostilities, terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages, or other industrial disturbances; and (h) shortage of adequate power or transportation facilities beyond the control of the Impacted Party.
14. Relationship of the Parties
Nothing contained in this Agreement 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.
15. Governing Law; Jurisdiction
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the laws of the State of Florida without giving effect to any choice or conflict of law provision. Any legal suit arising out of or relating to this Agreement shall be instituted in the state or federal courts located in Broward County as each party irrevocably submits to the exclusive jurisdiction of such courts.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.