TERMS OF SALE
These Terms of Sale shall govern any agreement, order or sale made by Scott Stainless Steel, Inc., an Illinois corporation (“Scott Stainless”). Any invoice by Scott Stainless is expressly limited to and made conditional upon the terms and conditions herein. If any of Buyer’s terms are different from those contained herein, whether added hereto or contained in any purchase order, acknowledgment or confirmation prepared by Buyer and sent to Scott Stainless, Buyer hereby agrees that they are rejected, superseded and replaced by these Terms of Sale. Buyer is ordering or accepting any goods or services from Scott Stainless or making payment under any invoice by Scott Stainless shall be deemed acceptance of these Terms of Sale.
1. Sale and Payment. All materials offered by Scott Stainless are subject to prior sale and such offers may be terminated at any time before final sale. All payments shall be in legal tender of the United States of America. In the event Buyer fails to make payment in full within the time period set forth on any invoice by Scott Stainless, 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 and permits Scott Stainless to suspend further delivery under any contract between Buyer and Scott Stainless and collect the damages incurred by Scott Stainless resulting therefrom in accordance with Section 3 hereof. If Scott Stainless has to take legal action or file an arbitration to collect any amounts due based hereunder, Buyer shall pay all court costs and reasonable attorney’s fees incurred by Scott Stainless resulting therefrom in accordance with Section 3 hereof in bringing and prosecuting such action.
2. Disputes. All communications concerning disputed debts are to be sent to Scott Stainless Steel, Inc., 666 Dundee Road, Unit 807, Northbrook, Illinois 60062.
3. Damages. As damages incurred by Scott Stainless for any breach by Buyer of any invoice or of these Terms of Sale, including without limitation, in the event Buyer fails to make payment in full within the time period set forth on any invoice by Scott Stainless, or within the time period expressly agreed upon in writing by the parties, Buyer agrees to pay Scott Stainless the aggregate amount of (i) the invoice amount, plus (ii) interest as described in accordance with Section 6 hereof, plus (iii) all court costs, expenses, and attorney’s fees incurred.
4. Taxes. All prices are quoted exclusive of taxes, tariffs, duties, and other governmental assessments (collectively “taxes”). Any taxes which Scott Stainless may be required to pay or collect, through assessment or otherwise, under any existing or future law upon or with respect to the sale, purchase, delivery, transportation, exportation, storage, processing, use or consumption of any goods or services to, by, or for Buyer, including, without limitation, taxes upon or measured by receipts from sales or services, shall be for the account of Buyer and shall be paid by Buyer by being added to the price of such goods or services.
5. Shipping. Unless otherwise agreed to by Scott Stainless:
(1) All prices are F.O.B. Scott Stainless’ plant or origin described on any invoice by Scott Stainless;
(2) All freight and shipping costs shall be the responsibility of Buyer;
(3) Title and risk of loss passes to Buyer after Scott Stainless loads the goods on the carrier;
(4) All claims for damages incurred during shipment shall be made by Buyer directly to the carrier;
(5) Shipment shall be made freight collect; and
(6) Scott Stainless has the right to select the carrier for shipment, in the sole discretion of Scott Stainless.
6. Finance Charge. A finance charge of the lesser of 1.5% per month, 18% annual percentage rate, or the highest rate permitted by law, shall be charged on all amounts unpaid 30 days after the date of any invoice by Scott Stainless.
7. Force Majuro. Manufacture, shipment and delivery are subject to, and Scott Stainless shall not be liable for any delay in or impairment of performance resulting in whole or in part from, any war (whether or not declared), strike, difference with workmen, accident, fire, flood, Acts of God, delay in transportation, shortage of materials, equipment breakdowns, mill conditions, laws, regulations, orders or acts of any governmental agency or body or any cause beyond the reasonable control of Scott Stainless, or if performance by Scott Stainless becomes impracticable due to the occurrence of a contingency, the non-occurrence of which was a basic assumption on which the sale was made.
8. Inspection and Claims. (i) All non-prime, secondary, obsolete and surplus materials are hereby accepted by Buyer “AS IS” and “WHERE IS”, and (ii) for all other materials, it is Buyer’s obligation to inspect all goods upon receipt. All claims of any nature shall be barred unless notice thereof is given to Scott Stainless, at its address set forth in Section 2 hereof, in writing by certified or registered mail, postmarked within ten (10) days after receipt of the goods, and the goods relating to such claims are held intact and properly protected, unless instructed otherwise by Scott Stainless, pending inspection by Scott Stainless. WITHOUT LIMITATION OF THE PRECEDING SENTENCE OF THIS SECTION 8, EITHER (I) FAILURE TO NOTIFY SCOTT STAINLESS OF ANY NON-CONFORMANCE WITHIN 10 DAYS AFTER RECEIPT OF ANY GOODS IN THE SPECIFIC MANNER DESCRIBED ABOVE, OR (II) FAILURE TO RETURN ANY GOODS IN THE “SAME CONDITION” (AS SUCH TERM IS DESCRIBED BELOW), SHALL CONSTITUTE ACCEPTANCE OF SUCH GOODS AND WAIVER OF ALL CLAIMS WITH RESPECT TO ANY NON-CONFORMANCE. THE TERM, “SAME CONDITION”, AS USED IN THIS SECTION 8, WITH RESPECT TO ANY GOODS, SHALL REFER TO 90% OR MORE OF SUCH GOODS BEING UNPROCESSED OR UNUSED.
9. Buyer’s Insolvency. Scott Stainless shall have the unrestricted right to cancel, withhold or delay its performance or delivery hereunder in the event of the happening of any of the following or any other comparable events, in which event Scott Stainless shall have no liability for any losses or damages claimed by Buyer: (i) Buyer’s insolvency or commission of an act of bankruptcy; (ii) commencement of proceedings by, for or against Buyer under any law relating to bankruptcy or the relief of debtors; (iii) the appointment of a receiver or trustee for Buyer; (iv) the execution by buyer of an assignment for the benefit of the creditors, and (v) the determination by Scott Stainless, in its sole discretion, that Buyer’s financial condition is such as to endanger its performance hereunder.
10. Limited Warranty. Scott Stainless warrants that any goods delivered pursuant hereto comply with any written specifications set forth by Scott Stainless; provided and except that, all goods, including those produced to meet an exact specification, dimension, weight, or straightness, are subject to the producer’s mill tolerances and variations in surface and internal conditions in respect to dimension, weight, straightness, section composition and mechanical or physical properties; to normal variations in surface and internal conditions and in quality; to deviations from tolerance and variations consistent with practical testing and inspection methods; and to regular steel industry mill practice on overshipment and undershipment. Notwithstanding the foregoing, all non-prime, secondary, obsolete and surplus materials are hereby accepted by Buyer “AS IS” and “WHERE IS”. THE AFORESAID IS THE ONLY WARRANTY GIVEN BY SCOTT STAINLESS. THERE ARE NO OTHER REPRESENTATIONS OR WARRANTIES GIVEN BY SCOTT STAINLESS, EXPRESS, IMPLIED OR STATUTORY. THERE ARE NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR USE THAT APPLY TO ANY GOODS SOLD HEREUNDER, WHICH WARRANTIES ARE HEREBY SPECIFICALLY EXCLUDED.
11. Limitation of Remedy. BUYER’S EXCLUSIVE REMEDIES WITH RESPECT TO ANY GOODS FURNISHED BY SCOTT STAINLESS HEREUNDER THAT ARE FOUND TO BE DEFECTIVE OR OTHERWISE NOT IN CONFORMITY WITH ANY WARRANTY OR ANY INVOICE BY SCOTT STAINLESS SHALL BE LIMITED TO, AT SCOTT STAINLESS’ SOLE OPTION, EITHER (A) REPLACEMENT OF ANY DEFECTIVE OR NON-CONFORMING GOODS, (B) SUBJECT TO SECTION 16, A CREDIT TO BUYER’S ACCOUNT FOR SO MUCH OF THE PURCHASE PRICE AS RELATES TO ANY DEFECTIVE OR NON-CONFORMING GOODS, OR (C) SUBJECT TO SECTION 16, A REFUND TO BUYER OF THE PURCHASE PRICE FOR ANY DEFECTIVE OR NON-CONFORMING GOODS.
12. Limitation of Liability. SCOTT STAINLESS’ LIABILITY WITH RESPECT TO ANY BREACH HEREUNDER OR RELATING TO ANY GOODS SOLD PURSUANT HERETO, SHALL NOT EXCEED THE AMOUNT PAID BY BUYER FOR ANY DEFECTIVE OR NON-CONFORMING GOODS. UNDER NO CIRCUMSTANCES SHALL SCOTT STAINLESS BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY CLAIMS FOR LOST PROFITS.
13. Complete Agreement. These Terms of Sale and any corresponding invoice by Scott Stainless constitute the entire and only agreements between the parties hereto and any negotiations, representations, affirmations of fact and courses of prior dealings, promises or conditions in connection therewith if not expressly incorporated herein shall not be binding upon Scott Stainless. No waiver, alteration or modification of any of the provisions hereof shall be binding unless in writing and signed by a specifically authorized representative of Scott Stainless.
14. Credit. All orders and shipments are subject to the approval of Scott Stainless, and Scott Stainless may at any time refuse to make shipment or delivery if Buyer fails to fulfill the terms and conditions of payment or fails to provide security satisfactory to Scott Stainless.
15. Packaging. Scott Stainless will use its reasonable efforts to comply with any special packaging, loading or bracing requirements specified in any order. Scott Stainless will charge for compliance with Buyer’s such special requirements. If no packaging, loading or bracing requirements are specified by Buyer, Scott Stainless shall comply with the minimum requirements customarily applied by Scott Stainless to the method of transportation used for such goods.
16. Setoff. Scott Stainless shall have the right to credit toward the payment of any monies that may become due Scott Stainless hereunder any sums which may now or hereafter be owed to Buyer by Scott Stainless or by any affiliate of Scott Stainless.
17. Arbitration/Litigation. Any dispute arising between the parties hereto shall be resolved, at Scott Stainless’ sole option, either by arbitration in Chicago, Illinois, in accordance with the Rules of the American Arbitration Association, and the award of the arbitrator(s) shall be final and binding upon the parties, or by litigation in a court of competent jurisdiction in Chicago, Illinois, in accordance with applicable rules of civil procedure, and the decision of the judge or jury shall be final and binding upon the parties. Buyer hereby consents to the personal jurisdiction and venue of the federal and state courts located in Chicago, Illinois.
18. Limitation of Action. In no event may any claim by Buyer arising from or relating to any agreement, order or sale of any goods or services be brought more than one (1) year after the date of delivery of such goods or services.
19. Nonwaiver. No waiver or failure to enforce compliance with the terms hereof by Scott Stainless shall constitute a waiver of Scott Stainless’ rights to insist upon strict compliance with the terms hereof thereafter.
20. Controlling Law. Any invoice by Scott Stainless shall be deemed made in the State of Illinois. These Terms of Sale and any invoice by Scott Stainless and any dispute arising from the goods or services described therein shall be governed by the laws of the State of Illinois (without regard to its choice of law rules).
21. Headings. The headings used in these Terms of Sale are solely for the convenience of the parties and shall have no force or effect upon the interpretation of any provision hereof.
22. Assignment. Buyer shall not assign any order or any interest therein without the prior written consent of Scott Stainless. Any such actual or attempted assignment without Scott Stainless’ prior written consent shall entitle Scott Stainless to cancel such order upon written notice to Buyer.
23. Severability. If any provision of these Terms of Sale or the application of such provision to any person or circumstance shall be held invalid, the remainder of these Terms of Sale, or the application of such provision to persons or circumstances, other than those as to which it is held invalid, shall not be affected thereby.
24. Nuclear Application Exclusion. It is expressly understood and agreed that the Buyer will not use, cause to be used or make available for use any goods sold pursuant hereto in any nuclear application including, but not limited to, use in connection with any nuclear reactor, any nuclear power generating system or any nuclear waste (or spent fuel) disposal project. Any nuclear application of any goods sold pursuant hereto is wholly unauthorized and shall be deemed to be unknown to, unforeseeable to and unintended by Scott Stainless. BUYER SPECIFICALLY AGREES THAT, AS TO NUCLEAR APPLICATION. THE GOODS SOLD PURSUANT HERETO BY SCOTT STAINLESS ARE FURNISHED WITHOUT ANY WARRANTIES WHATEVER, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IT IS FURTHER SPECIFICALLY AGREED THAT BUYER WAIVES ALL REMEDIES AND ANY CLAIM, INCLUDING ANY STATUTORY OR COMMON LAW CLAIM FOR CONTRIBUTION OR INDEMNIFICATION, AGAINST SCOTT STAINLESS WITH RESPECT TO ANY NUCLEAR APPLICATION OF THE GOODS SOLD PURSUANT HERETO BY SCOTT STAINLESS.