Terms and Conditions
1. GENERAL. L. Miller & Son, Inc. d/b/a LMS Metal Sales (“Seller”) and the Purchaser (Buyer”) named on the face of the Quotation or Sales Order (the “Agreement”) agree that the following terms and conditions apply to the materials, goods, and/or products (the “Goods”) listed on the front of this Agreement or subsequently ordered under this Agreement.
2. ACCEPTANCE/SOLE TERMS. This order is expressly conditioned upon the Buyer’s acceptance of the foregoing terms. Buyer is hereby put on notice that no terms additional to or deviating from the foregoing terms shall become part of the order, unless and until letter acceptance of such additional or deviating terms, signed by an officer of Seller has been issued to Buyer. Buyer’s acceptance of any Goods supplied by or on behalf of, Seller shall, without limitation constitute acceptance of Seller’s terms contained herein. If Buyer retains possession of the Goods for ten (10) days or longer after the receipt of their shipment or makes use of the Goods at any time after their receipt, Buyer shall be deemed to have expressly assented to Seller’s terms herein without condition or qualification, and in so doing, Buyer shall have confirmed its express intention to waive any conditions or qualifications on Buyer’s acceptance of Seller’s offer.
3. PRICE. All prices are F.O.B. Seller’s plant unless otherwise specifically set forth on the face side of the Agreement. Prices stated are subject to change without notice in the event of (i) alterations in specifications, quantities, designs, or delivery schedules: (ii) increases in the cost of fuel, power, material supplied, or labor, and/or (iii) foreign or domestic legislation enacted by any level of government, including tax legislation which increases the cost of producing, warehousing, or selling the Goods purchased hereunder. “P.I.E. - PRICE IN EFFECT notice: Due to current commodity fluctuations, mill price increases, and alloy surcharges, Seller reserves the right to increase or decrease prices at the time of shipment.” No discount will be allowed unless specifically set forth on the face side hereof. Buyer agrees to pay a delinquency charge of 1½% per month or if such rate shall exceed the maximum rate allowed by applicable law, then a delinquency charge calculated at such maximum rate on the outstanding balance not paid when due, from the date such balances were due until payment with respect thereof is made in full. If, in Seller’s opinion, the financial condition of the Buyer at any time does not justify continuance of production or shipment on the terms of payment specified, Seller may require full or partial payment in advance. The due date is displayed on each invoice.
4. WARRANTY/REMEDY. Seller warrants that the materials and Goods manufactured by it will be free from defects in material and workmanship for ninety days (90) following the date of shipment. THE FOREGOING WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE NOT EXPRESSLY HEREIN, ARE HEREBY EXCLUDED. NO AFFIRMATION OF SELLER, BY WORDS OR ACTION, OTHER THAN AS OUTLINED IN THIS WARRANTY CLAUSE SHALL CONSTITUTE A WARRANTY. GOODS WHICH ARE SOLD BY SELLER BUT NOT MANUFACTURED BY SELLER ARE NOT WARRANTED BY SELLER, BUT ARE SOLD ONLY WITH THE WARRANTIES, IF ANY, OF THE MANUFACTURER(S) THEREOF. Seller’s warranty does not apply to any Goods which have been subjected to misuse, mishandling, misapplication, neglect, accident, improper installation, or modification (including but not limited to use of unauthorized parts or attachments).
(a) If any of the Goods are found by Seller to be defective, such Goods will, at Seller’s option, be replaced or repaired at Seller’s cost or Seller will refund the purchase price or give Buyer a reasonable allowance thereof. The parties hereto expressly agree that Buyer’s sole and exclusive remedy against the Seller shall be for the repair or replacement of the defective Goods or the refund of the purchase price or allowances thereof. Buyer hereby agrees that this exclusive remedy shall not be deemed to have failed of its essential purpose so long as the Seller is willing and able to repair or replace defective Goods in the prescribed manner or refund the purchase price or give Buyer an allowance thereof.
(b) Any warranty claim by Buyer concerning the Goods sold hereunder shall be deemed waived by the Buyer unless submitted in writing to Seller within the earlier of (i) 30 days following the date Buyer discovered, or by reasonable inspection should have discovered, any claimed breach of the foregoing warranty, or (ii) 90 days following the date of shipment. Any cause of action for breach of the foregoing warranty shall be brought within one year from the date of alleged breach was discovered or should have been discovered, whichever occurs first.
(c) Seller’s remedies relating hereto shall be cumulative and in addition to any other remedies provided herein or by law or in equity.
5. LIMITATION OF LIABILITY. SELLER’S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR STRICT LIABILITY) FOR ITS GOODS SHALL BE LIMITED TO REPAIRING OR REPLACING (AT SELLER’S OPTION) GOODS FOUND BY THE SELLER TO BE NONCONFORMING, OR AT THE SELLER’S OPTION, TO REFUNDING THE PURCHASE PRICE OF THE NONCONFORMING GOODS. At Seller’s request, Buyer will send, at Buyer’s sole expense, any allegedly defective Goods to Seller’s plant.
6. DISCLAIMER OF CONSEQUENTIAL AND INCIDENTAL DAMAGES. IN NO EVENT SHALL THE SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT INCLUDING WITHOUT LIMITATION BREACH OF ANY OBLIGATION IMPOSED ON SELLER HEREUNDER OR IN CONNECTIN HEREWITH. THE REMEDY UNDER THE WARRANTY PROVISION IS LIMITED TO REPAIR OR REPLACEMENT. Consequential damages for purposes hereof shall include, without limitation, loss of use, income, or profit, or losses sustained as the result of injury (including death) to any person, or loss of or damage to property (including without limitation, property handled or processed by the use of the Goods). Buyer shall indemnify Seller against all liability, cost, or expense which may be sustained by Seller on account of any such loss, damage, or injury.
7. ACCEPTANCE OF GOODS, DELIVERY AND TRANSPORTATION. Upon the Buyer’s receipt of the shipment, the Buyer shall immediately inspect the Goods. Unless Buyer provides Seller with written notice of any claim or shortages of or defects in the Goods forty eight (48) hours after receipt of shipment, such Goods shall be deemed finally inspected, checked, and accepted by Buyer. In the absence of shipping and packing instructions, Seller shall use its discretion in the choice of carrier and method of packing. Seller shall not be responsible for insuring shipments unless specifically requested by Buyer and any insurance so requested shall be at Buyer’s expenses and valuation.
8. TITLE AND RISK OF LOSS. Title to any Goods sold and risk of loss of such Goods passes to Buyer upon delivery by Seller to carrier and any claims for losses or damage shall be made by the Buyer directly to the carrier.
9. CREDIT TERMS. All orders and shipments shall at all times be subject to the approval of the Seller’s Credit Department. The Seller reserves the right to decline to make shipment whenever, for any reason, there is doubt as to Buyer’s financial responsibility, and Seller shall not in such event be liable for breach or nonperformance of this contract in whole or in part.
10. SECURITY INTEREST. To secure prompt payment of the purchase price for the Goods identified in the Agreement, Buyer hereby grants to Seller a purchase money security interest in the Goods purchased from Seller and all proceeds thereof (the “Collateral”). Buyer agrees to execute and deliver to Seller UCC financing statements, together with any other documents, and shall take such other action, as may be required to perfect Seller’s security interest in the Collateral.
11. COSTS OF COLLECTION. If, at any time or times, Seller incurs legal expenses or other costs of expenses in connection with: (i) any litigation, contest, suit, dispute, proceeding, or action in any way relating to the Goods or Collateral: (ii) any attempt by Seller to enforce any rights of Seller against Buyer or any other person that may be obligated to Seller hereunder, or (iii) any attempt to inspect, verify, protect, preserve, restore, collect, sell, liquidate, or dispose of the Goods or Collateral; then, in any such event, all such expenses and costs (including attorneys’ fees) relating to any of the foregoing events or actions shall be payable by Buyer on demand to Seller and shall be considered additional obligations hereunder. Seller reserves the right to revoke any credit extended to Buyer at any time because Buyer failed to pay for any of the Goods or Collateral when due, or for any reason deemed good and sufficient by Seller.
12. TAXES. Any sales, use or similar taxes, export charges, fees, or other levies, taxes, or surcharges now or hereafter imposed in connection with the production, sale, delivery, use, or proceeds of the Goods herein specified (except for taxes on Seller’s net income) shall be payable by Buyer, and if such taxes or fees are paid or are required to be paid by Seller, the amount thereof shall be added to and become part of the price payable by Buyer hereunder, unless Buyer provides Seller with a valid tax exemption certificate.
13. PACKAGING. Prices stated are based on the Seller’s standard packaging. Seller reserves the right to package the Goods in pallets, bulk, or individual cartons. Packaging will be a standard commercial package acceptable to commercial carriers. Special customer packaging will be furnished only when specified and so stated herein, and the cost thereof shall be borne by Buyer.
14. DELAYS. Unless expressly specified to the contrary, stock goods will be shipped immediately, and Goods not in stock will be shipped as soon as possible. However, all shipping dates are approximate and are based on the current availability of materials, present production schedules, and prompt receipt of all necessary information. Seller will not be liable for any damage, loss, fault, or expenses arising out of delays in shipment or other nonperformance of this Agreement caused by or imposed by: (a) strikes, fires, disasters, riots, acts of God, (b) acts of Buyer, (c) shortages of labor, fuel, power, materials, supplies, transportation, or manufacturing facilities, (d) governmental action, (e) subcontractor or supplier delay including, but not limited to failure by subcontractor or supplier to make timely delivery, or (f) any other cause or condition beyond Seller’s reasonable control. In the event of any such delay or nonperformance, Seller may, at its option, and without liability, cancel all or any portion of this Agreement and/or extend any date upon which any performance hereunder is due.
15. TERMINATION, CANCELLATION AND CHANGES. Orders cannot be terminated, canceled, or modified, or shipment deferred after acceptance of Buyer’s order by Seller, except with Seller’s written consent signed by an officer of Seller on its Cancelation or Modification Form, as may be modified by Seller from time to time. No other verbal, written, or e-mail agreement for termination, cancelation, or modification shall be effective or binding on Seller. All termination, cancelation, or modification of orders are subject to reasonable charges for expenses incurred and work executed by Seller or its suppliers. Purchaser shall be obligated to accept any portion of the Goods shipped or delivered by Seller pending Seller’s written approval of cancellation. Orders for custom-made or custom-cut material may not be canceled after Seller has been in production unless Seller agrees in writing signed by an officer of Seller, as described in this Section.
16. RETURNED PRODUCTS. Delivered Goods returned to Seller require prior written approval from Seller before such Goods will be accepted. Handling, inspection, restocking, and invoicing charges will be assessed, if applicable, plus any outgoing packing and freight expenditures paid by Seller. In no event shall such charges be less than 20% of the price of the Goods to the Buyer. All returns allowed must be shipped to Seller prepaid and must be in excellent resale condition. Goods processed to the Purchaser’s specifications or other non-stocked Goods are not returnable.
17. NO WAIVER. Forbearance or failure of Seller to enforce any of the terms and conditions stated herein, or to exercise any right accruing from default of Buyer, shall not affect or impair Seller’s rights arising from such defaults; nor shall forbearance or failure be deemed a waiver of Seller’s rights in case of any subsequent default of Buyer.
18. SEVERABILITY. If any provision of this Agreement is unenforceable or invalid, this Agreement shall be interpreted and enforced to the greatest extent possible as if the unenforceable provision or portion had never been a part hereof.
19. ASSIGNMENT. These terms and conditions and this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of Buyer and Seller provided, however, that Buyer may not assign or transfer this Agreement, in whole or in part, except upon the prior written consent of Seller signed by an officer of Seller.
20. GOVERNING LAW. This Agreement shall be construed by and governed by the laws of the State of Alabama without regard to its conflict of law provisions. All actions or proceedings arising directly or indirectly herefrom shall be litigated only in the courts of the State of Alabama in Madison County, or United States federal courts located in the Northern District of Alabama (Huntsville), and the parties hereby consent to the jurisdiction and venue of such courts.
21. DISPUTE RESOLUTION. Any dispute or claim arising from or relating to this Agreement or performance under it should be resolved amicably through discussions between Buyer and Seller attempting in good faith to negotiate a resolution thereof.
22. ENTIRE CONTRACT. Upon Seller’s acceptance of Buyer’s order, the terms and provisions set forth herein shall constitute the entire agreement between Buyer and Seller.
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