TERMS AND CONDITIONS OF SALE
STANSTEEL CORPORATION (“STANSTEEL”) GENERAL TERMS AND CONDITIONS OF SALE
DAMAGES LIMITATION. STANSTEEL SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY SORT, NOR FOR ANY LOSS OF PROFITS, LOSS OF SALES OR BUSINESS INTERRUPTION (WHETHER OR NOT SUCH DAMAGES ARE CLASSIFIED AS DIRECT OR INDIRECT DAMAGES), WHETHER ARISING UNDER WARRANTY, GUARANTEE, CONTRACT, TORT OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOEVER RELATED IN ANY WAY TO OR ARISING FROM THE SALE OF GOODS OR SERVICES.
Without expanding the foregoing limitation, under no circumstances shall Stansteel be liable to Customer, its employees, affiliates or agents by reason of the sale in an amount exceeding the greater of the amount owed to Stansteel under the subject purchase order or Stansteel’s applicable insurance paid for such loss. THE FOREGOING PROVISIONS SHALL (I) PREVAIL OVER ANY INCONSISTENT PROVISIONS IN THESE TERMS OR ELSEWHERE BETWEEN THE PARTIES, (II) SURVIVE ANY TERMINATION OF THE ORDER AND CONTINUE TO BIND THE PARTIES, AND (III) MAY BE CHANGED ONLY BY THE JOINT WRITTEN CONSENT OF BOTH PARTIES.
DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY STATED IN A CONTRACT SIGNED BY STANSTEEL: (I) STANSTEEL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, ON ANY OF THE GOODS SOLD (INCLUDING WITHOUT LIMITATION ANY MANUALS, INSTRUCTIONS, SPECIFICATIONS OR DRAWINGS RELATED THERETO) AND SPECIFICALLY EXCLUDES AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, (II) IF ANY WARRANTY IS AGREED UPON IN WRITING, THERE ARE NO OTHER WARRANTIES WHICH EXTEND BEYOND THAT EXPRESSED WARRANTY, AND (III) STANSTEEL WILL MAKE REASONABLE EFFORTS TO ASSIST CUSTOMER WITH REGARD TO ALL WARRANTIES (IF ANY) PROVIDED FOR CUSTOMER’S BENEFIT BY THE ORIGINAL SUPPLIER OR MANUFACTURER WITH RESPECT TO NEW EQUIPMENT OR GOODS SOLD.
LIMITATION OF REMEDIES. IF ANY WARRANTY IS DEEMED TO EXIST (WHETHER ARISING FROM STATUTE, COMMON LAW, CUSTOM OR OTHERWISE) WITH RESPECT TO THE GOODS OR SERVICES BY WRITTEN AGREEMENT OF STANSTEEL, THE REMEDY OF REPAIR OR REPLACEMENT OF THE DEFECTIVE WARRANTED GOOD SHALL BE THE EXCLUSIVE REMEDY AVAILABLE TO CUSTOMER, ITS PRINCIPAL OR AGENT. IN THE EVENT THAT REPAIR OR REPLACEMENT IS AN INEFFECTIVE REMEDY, THE SOLE AND EXCLUSIVE ADDITIONAL REMEDY IS THE RIGHT OF CUSTOMER TO RECOVER AN AMOUNT NOT TO EXCEED THE AMOUNT PAID TO STANSTEEL FOR THE DEFECTIVE GOOD. EXCEPT FOR SUCH REPAIR, REPLACEMENT OR REFUND, STANSTEEL SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, EXPENSE OR DAMAGE CAUSED BY OR RESULTING FROM THE GOOD SOLD WHETHER CAUSED BY DEFECT, FAILURE OR MALFUNCTION AND WHETHER A CLAIM OF SUCH DAMAGE IS BASED UPON WARRANTY, CONTRACT, NEGLIGENCE OR OTHER THEORY. Any warranties and representations that exist (1) apply to the goods described as being sold by Stansteel and does not apply to existing equipment of Customer or any goods provided by others; (2) are conditioned on Customer paying the sums due as and when they become due; and (3) shall not apply to any good which has been altered or tampered with by or through Customer, has been used beyond its normal useful or expected life, has not been properly erected and operated by or through Customer according to the operating instructions and manuals, or which has had corrective work done thereon by any party without Stansteel’s written consent. No person has the authority to bind Stansteel to any representation of warranty other than the foregoing limited warranties with the limited damages and remedies specified.
INDEMNIFICATION. Customer shall defend, indemnify and hold Stansteel harmless from all expenses (including reasonable attorneys’ fees), claims, demands, judgments, actions, costs, and liabilities (including those alleging Stansteel’s own negligence except to the extent prohibited by applicable law) which arise from, relate to or are connected with the subject matter of the order or Customer, its employee or agent’s possession, use, operation or resale of the goods sold or any manuals, instructions, drawings or specifications related thereto. WHILE SUCH OBLIGATIONS ARE DENIED, ANY INDEMNITY OBLIGATIONS STANSTEEL IS DEEMED TO HAVE RELATED TO OR ARISING FROM AN ORDER ARE LIMITED TO, AND SHALL IN NO EVENT EXCEED, THE AMOUNT OF STANSTEEL’S APPLICABLE INSURANCE PAID FOR SUCH LOSS OR OBLIGATION.
PAYMENT AND FINANCING CHARGE. Unless otherwise stated in writing, payment is due within thirty (30) days from the date of invoice. If, in the judgment of Stansteel, the financial condition of Customer does not justify the terms of payment specified, Stansteel may require full or partial payment in advance. If shipment is delayed by Customer, payments shall become due from the date when Stansteel is prepared to make shipment. If manufacturing is delayed by Customer, payment shall be made based on the purchase price and percentage of completion. If payment is not made in conformance with the stated terms, Customer shall pay a finance charge of 1.5% per month on the unpaid balance (or the maximum rate permitted by law) and all reasonable attorneys’ fees and costs of collection incurred by Stansteel.
CREDIT CARD PAYMENTS AND PROCESSING FEES. Payments made by credit card may be subject to a processing fee reflecting the cost of card acceptance. Such fee shall not exceed Stansteel’s actual cost of acceptance and will be disclosed to Customer prior to final payment authorization. No processing fee applies to payments made by check, ACH, or wire transfer. Customer acknowledges that use of a credit card for payment constitutes acceptance of any disclosed processing fee.
TAXES. The price does not include any federal, state, provincial, or local sales/value added/use, or like taxes, duties, tariffs, or freight which may now or hereafter be applicable to, the order, which if applicable are the sole responsibility of the Customer. Customer agrees to pay all such taxes and other costs and to indemnify and hold harmless Stansteel, and Stansteel subcontractors and suppliers, from all such taxes and costs and any related interest, penalty, or other expense.
TERMINATION. An order or contract may be terminated by Customer only upon written notice and payment to Stansteel of a cancellation fee in an amount equal to expenses already incurred and commitments made by Stansteel by reason of the order. Expenses include without limitation purchasing, manufacturing, administrative, shipping and travel expenses, engineering, and marketing expenses related to the order.
CURE PERIOD. The period within which Stansteel may cure any default in the performance of any of its obligations hereunder shall be thirty days after receipt by Stansteel of written notice of default from Customer. However, a default which reasonably requires more than thirty days to cure shall be deemed cured if Stansteel in good faith within thirty days after receipt of notice commences performance requisite to cure same and thereafter with reasonable diligence proceeds to complete the performance required to cure such default within a commercially reasonable time.
DELIVERY AND RISK OF LOSS. Unless otherwise expressly stated in a contract signed by Stansteel, delivery of equipment or other goods, if any, will be made F.O.B. shipping point (2020 Incoterms). Customer shall be solely responsible for any freight, tariffs, customs, import duties, or other related obligations unless otherwise specifically agreed to by the parties in writing. Shipping dates are approximate and are based on prompt receipt of all necessary information from Customer. Stansteel shall not be liable for any indirect, incidental or consequential damages of any type for delay with respect to shipping, delivery, installation or start-up dates.
FORCE MAJEURE. Stansteel shall not be liable for failure to perform or for delay in performance due to fire, flood, or other acts of God, strike, act or interference of any governmental authority (including the imposition of new tariffs or changes in law) or of Customer, war, riot, terrorist act, epidemic, pandemic, embargo, vehicle or vessel shortage, wrecks or delay in transportation, inability to obtain necessary labor, materials, or manufacturing facilities from usual sources and without increased prices or due to any other cause beyond its reasonable control making performance impossible or commercially impracticable. Such events may result in termination of the order or any portion thereof by Stansteel without liability, and in the event of delay in performance due to any such cause, the date of delivery and time for completion shall be postponed by such length of time as may be reasonably necessary.
CUSTOMER’S DELAY OR FAILURE TO ACCEPT DELIVERY. Any material delay by Customer in approving drawings, making payments in accordance with an order, or in providing other information or approvals required (as applicable) shall impact the schedule by the amount of hours of the delay. Customer shall be responsible for the costs to Stansteel of any material delay in delivery of goods caused by Customer, its agents or subcontractors (to the extent the delay was not caused by Stansteel). If Customer fails to accept delivery of or otherwise take possession of any goods within 30 days from notification of readiness for shipment from Stansteel, Stansteel has the right and authority to charge Customer storage and transportation fees on a daily basis starting on day 31, to store the goods itself or through a third party, or to take any combination of such actions, all at Customer’s sole cost.
SECURITY FOR PAYMENT. To secure the payment of any and all amounts due Stansteel, Stansteel retains and Customer grants to Stansteel a security interest under the Uniform Commercial Code in the equipment and other goods sold and agrees to execute and deliver to Stansteel such financing statements as Stansteel may reasonably request. If Customer fails to make payment in accordance with the stated terms, Stansteel may declare all obligations of Customer to Stansteel immediately due and payable and proceed to enforce payment and exercise any and all of the rights and remedies provided by the Uniform Commercial Code.
DISPUTE RESOLUTION.
Any and all disputes or claims relating to or arising out of the sale of goods shall be settled by arbitration conducted in accordance with the Uniform Arbitration Act, KRS Chapter 417, in force at the time of the execution and delivery of the order, with exclusive jurisdiction, venue and place of arbitration in Jefferson County, KY. The appropriate Kentucky court shall have the sole power, authority and jurisdiction to enforce this arbitration provision. This paragraph shall be construed as broadly as legally permissible to use arbitration for the purposes described. THE PARTIES SPECIFICALLY AND IRREVOCABLY WAIVE A JURY TRIAL OF ALL ISSUES AND MATTERS. Judgment upon the award entered by the arbitrator may be entered in any court having jurisdiction. The arbitrator shall use the substantive and procedural laws of Kentucky. The arbitration award shall be final and binding on the parties, and the parties agree to be bound thereby. Applicability of the provisions of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from any order. Prior to initiation of arbitration, officers from both parties shall engage in good faith efforts to resolve any dispute. Either party may give the other party written notice of any dispute not resolved in the normal course of business. The receiving party shall submit to the other a written response. If the matter is not resolved within 30 days, either party may provide a notice of arbitration. Arbitration shall be conducted by a single arbitrator, who shall be selected by agreement of the parties. If the parties cannot agree on an arbitrator, the parties shall utilize the American Arbitration Association for the arbitration, and the Commercial Rules will apply. The arbitrator shall have no authority to award any indirect, incidental, consequential, punitive or exemplary damages in any determination. A party hereto who is required to enforce the processes of this arbitration provision shall be entitled to recover attorney’s fees incurred in enforcing the requirements of this provision.
MANUALS, DRAWINGS AND SPECIFICATIONS. All manuals, drawings or specifications related to the goods described or sold and the information contained therein contain proprietary information and may not be reproduced, transferred, or distributed or used in any manner unrelated to the goods sold pursuant to the order by Customer without the prior written consent of Stansteel. No license of any kind is granted to the proprietary or confidential information or documentation of Stansteel.
ACCEPTANCE OF ORDER. An order does not become a binding contract upon Stansteel until signed by Customer and accepted by Stansteel at its home office in Louisville, Kentucky, or when Stansteel commences performance from such office. This agreement may be executed and delivered by exchange of electronic copies showing the signatures of Customer and Stansteel and those signatures need not be affixed to the same copy. The electronic copies showing the signatures will constitute originally signed copies of the same agreement requiring no further execution. When so accepted, or when Stansteel commences performance, the order will become a contract deemed to be made in Kentucky and governed by Kentucky law, including without limitation the Uniform Commercial Code as adopted by Kentucky and in effect on the date of the purchase where applicable. Acceptance of an order by Stansteel is expressly limited to the provisions contained herein. These terms and conditions supersede all terms and conditions described in any communication, proposal, purchase order or other document submitted by or to Customer.
SEVERABILITY AND REFORMATION. It is the intent of the parties that these terms and conditions be enforced to the fullest extent permitted by any law and public policy applied in any jurisdiction in which enforcement is sought. The parties agree that the provisions hereof are severable and that if any particular provision or its application is adjudicated invalid or unenforceable, that provision shall be deemed reformed to the extent necessary to allow enforcement of that provision to the maximum extent permissible under applicable law. Any such reformation shall apply only that jurisdiction with respect to that particular provision.
PRECEDENCE AND MODIFICATION. The proposal and these terms contain the entire agreement between Customer and Stansteel regarding any equipment, goods, services or other deliverables purchased or to be purchased and can only be modified or rescinded in writing signed by a representative of Customer and a duly authorized officer of Stansteel.