Sales Order Acknowledgement – Terms and Conditions
REMELT SOURCES, INC. (“SELLER”) HEREBY ACKNOWLEDGES AND ACCEPTS BUYER’S (“BUYERS”) ORDER AS IDENTIFIED ON THE PURCHASE ORDER, BUT SUBJECT TO, AND CONDITIONED UPON, BUYERS ACCEPTANCE AND ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THIS SALES ORDER ACKNOWLEDGEMENT, WHICH TERMS AND CONDITIONS, WHERE DIFFERENT FROM OR IN ADDITION TO THOSE OF BUYER’S PURCHASE ORDER, WILL BE DEEMED TO CONTROL. BUYER’S EXECUTION OF THIS FORM OR ITS TAKING DELIVERY OF ANY PORTION OF THE GOODS SHALL CONCLUSIVELY EVIDENCE ITS ACCEPTANCE AND ASSENT. FURTHER, SELLER HEREBY OBJECTS IN ADVANCE TO ANY TERMS WHICH BUYER MAY HEREAFTER PROPOSE AND WHICH MAY BE DIFFERENT FROM OR IN ADDITION TO THE TERMS HEREOF.
- Identification of the goods under Section 2-501 of the Uniform Commercial Code shall occur at the earlier of the following events: (i) BUYER’s acceptance of this document; (ii) SELLER’s shipment of any of the goods covered under this order; or (iii) upon notification to BUYER that SELLER is holding any of the goods at BUYER’s disposition. Risk of loss of the goods shall pass to BUYER as soon as the goods are so identified.
- Unless set forth to the contrary on the Sales Order Acknowledgement, all goods shall be delivered according to the terms specified on the Sales Order Acknowledgement, and BUYER shall have the right to inspect the goods at the time and place of delivery before paying for or accepting the goods. Prices with respect to the goods specified herein are exclusive of all city, state and federal sales, use, excise and other taxes and charges. Such taxes and charges will be the obligation of the BUYER and will be treated as a separate charge to be paid to SELLER by BUYER.
- The total price, unless set forth to the contrary on the face of this order, shall be paid by BUYER to SELLER in Cleveland, Ohio, within the time and in the manner specified on the Sales Order Acknowledgement. Unless otherwise specified, where a letter of credit issued as the method of payment hereunder, such letter or credit must be established within 14 days from the date of this SALES ORDER ACKNOWLEDGEMENT. Such letter of credit must (i) be irrevocable; (ii) permit partial shipments; and (iii) be issued by or confirmed and payable by a first class bank in the United States.
- If BUYER fails to deliver payment within the time specified on the Sales Order Acknowledgement, BUYER shall be deemed to be in default hereunder. In the event of BUYER’s default hereunder, SELLER has the sole right to do or take any or all of the following actions: (i) to declare due, payable and enforceable, without notice of demand to BUYER, all of BUYER’s obligations and liabilities to SELLER, whether under this document or any other agreement between BUYER and SELLER; (ii) to refuse to make any subsequent deliveries of goods to BUYER whether under this document or any other agreement between BUYER and SELLER; and (iii) to stop delivery of goods to BUYER in the possession of a carrier or other bailee.
- SELLER agrees to use its best timely efforts to complete delivery, but SELLER shall not be liable to BUYER for failure to deliver or delays in delivery occasioned by causes beyond SELLER’s control, including without limitation, strikes, labor difficulties, shortages of labor, fuel, power, materials or supplies, inability to obtain shipping space, transportation delays, fire, floods, accidents, riots, acts of God, war, Government interference or embargoes. Further, in such an event, SELLER reserves the right, in its sole discretion, to allocate its inventory of goods between BUYER’s order, other purchase orders and requests of regular customers and BUYER waives any right to assert a claim against SELLER theretofore.
- BUYER’s order shall be cancellable by BUYER only for cause and only after 10 days after written notice of such intention shall have been actually received by SELLER. BUYER shall be obligated to accept any goods tendered or delivered by SELLER during such period.
- SELLER MAKES NO WARRANTY TO BUYER, EXCEPT THAT THE GOODS CONFORM TO THE DESCRIPTION CONTAINED ON THE SALES ORDER ACKNOWLEDGEMENT. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) OF SELLER TO BUYER ARE HEREBY EXCLUDED, DISCLAIMED AND WAIVED.
- IN THE EVENT THAT THE GOODS DO NOT CONFORM TO THIS SALES ORDER ACKNOWLEDGEMENT OR SELLER IS OTHERWISE IN DEFAULT HEREUNDER, WHETHER FOR BREACH OF WARRANTY OR OTHERWISE, SELLERS LIABILITY SHALL BE LIMITED TO THE STATED SELLING PRICE PER ITEM FOR SUCH GOODS, AND SHALL IN NO EVENT INCLUDE BUYER’S OR ANY OTHER PERSON’S LOST PROFITS, GOODWILL OR ANY OTHER SPECIAL, DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. ALL OTHER LIABILITIES OF SELLER TO BUYER OR ANY OTHER PERSON ARE HEREBY EXCLUDED, DISCLAIMED, AND WAIVED.
- ALL CLAIMS FOR ALLEGED DEFECTS IN THE GOODS SHALL BE DEEMED WAIVED BY BUYER UNLESS MADE IN WRITING AND DELIVERED TO SELLER WITHIN 10 DAYS AFTER DELIVERY OF THE GOODS TO THE BUYER.
- No agent, employee or representative of SELLER has any authority to bind SELLER to any affirmation, representation, warranty or guaranty concerning the goods sold under this document and unless an affirmation, representation, warranty or guaranty made by an agent, employee or representative is specifically included within this document, it is not enforceable against SELLER. BUYER acknowledges that no representations, warranties and guarantees other than those contained herein have been made to BUYER or relied upon by BUYER.
- All statements of account rendered by SELLER to BUYER relating to payments due SELLER for goods sold to BUYER pursuant to this document shall be presumed correct and accurate and constitute an account stated between BUYER and SELLER unless within 10 days after receipt thereof by BUYER, BUYER shall deliver to SELLER by registered or certified mail addressed to SELLER at its principal place of business written objection thereto specifying the error or errors, if any, contained in any such statement.
- No right or interest under this document shall be assigned by either party without the written consent of the other and no delegation of any obligation owed, or of the performance of any obligation by either party shall be made without the written consent of the other party.
- This document, if signed by or on apparent behalf of BUYER, has been signed by a person who has been duly authorized by BUYER to execute this document on behalf of BUYER and bind it to the terms and conditions set forth herein.
- By acknowledging this document or accepting delivery of any of the goods, BUYER represents to SELLER that as of the date of this document BUYER is solvent, able to pay its debts as they mature, has capital sufficient to carry on its business and the present fair salable value of BUYER’s assets is greater than the amount of its liabilities.
- If at any time or times hereafter SELLER employs counsel for advice with respect to this document, or to intervene, file a petition, motion, order or other pleading in any suit or proceeding relating to this document, or to attempt to enforce this document against BUYER, the reasonable attorney’s fees arising from such services, and any expenses, costs, and charges relating thereto, shall be an obligation owing hereunder by BUYER to SELLER.
- If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
- This agreement constitutes the final, complete and exclusive statement of the agreement between BUYER and SELLER and supercedes all proposals, agreements, instruments and documents, oral and written, and all other communications between BUYER and SELLER relating to the subject matters of this agreement.
- The interpretation, enforcement, validity, construction of this Agreement shall be governed and controlled by the laws, statutes and decisions of the State of Ohio. Exclusive jurisdiction and venue regarding any dispute between BUYER and SELLER shall be with the Federal and State Courts located in Cuyahoga County, Ohio.
- A service charge of 1-1/2% per month (18% per year) will be added to all invoices 30 days past due.
- All information provided by SELLER to BUYER that is not otherwise available to the general public is “Confidential Information.” This Agreement does not confer upon BUYER any right or license to use any Confidential Information, including trade secrets, and/or know-how patents, copyrights, trademarks, or any other intellectual property rights of the SELLER. BUYER further agrees not to reverse engineer the goods.
BUYER’s Purchase Order – Terms and Conditions
REMELT SOURCES, INC. (“BUYER”) HEREBY ACKNOWLEDGES AND EXTENDS THIS OFFER TO SELLER (“SELLER”) SUBJECT TO THE TERMS AND CONDITIONS AS SET FORTH BELOW. ANY TERMS AND CONDITIONS CONTAINED IN ANY DOCUMENT MADE BY THE SELLER WHICH ARE IN ANY MANNER ADDITIONAL OR DIFFERENT FROM THE TERMS OR CONDITIONS SET FORTH BELOW SHALL NOT BECOME PART OF THE AGREEMENT BETWEEN BUYER AND SELLER, AND BUYER OBJECTS IN ADVANCE TO ANY ADDITIONAL OR DIFFERENT TERMS WHICH HERETOFOR OR HERETOAFTER MAY BE CONTAINED, WITHOUT LIMITATION, IN ANY ACCEPTANCE, ACKNOWLEDGEMENT OR OTHER RESPONSIVE COMMUNICATION SENT TO BUYER.
- BUYER shall have the right to specify the date or dates of delivery of the goods. The goods shall be delivered pursuant to the dates and / or schedule on the Purchase Order Acknowledgement. In the event BUYER does not specify such date or dates, delivery must be made within the time specified by the SELLER. In the event the SELLER fails to make delivery within the time specified or where delivery is to be made in partial shipments and any single delivery is not delivered within the time promised or specified herein for said shipment, BUYER reserves the right to make purchase elsewhere and at its option recover any additional costs of such purchase, including, without limitation, any incidental or consequential damages. TIME IS OF THE ESSENCE IN THIS CONTRACT.
- BUYER shall have the right to demand delivery of all the goods at one time or, where specified on the Purchase Order Acknowledgement, in partial shipments from time to time as specified by the BUYER during the period stated on the BUYER’s Purchase Order. If BUYER chooses to demand the goods in partial shipments, each shipment of the goods is dependent on every other shipment, and a delivery of non-conforming goods or a default of any nature (as hereafter defined) under one partial shipment (including, without limitation, a breach of SELLER’s warranties to BUYER) will impair the value of the whole contract and may constitute at BUYER’s discretion a total breach of the contract as a whole.
- The occurrence of any of the following shall constitute an event of default under this Agreement; (i) failure of SELLER to make timely delivery of the goods as specified on the BUYER’s Purchase Order; (ii) breach of SELLER’s warranty as specified in Paragraphs 11 and 12; (iii) assignment or delegation of any right or interest by SELLER without prior written consent of BUYER as specified in Paragraph 13. Upon the occurrence of an event of default, BUYER shall have all rights provided in the Uniform Commercial Code as adopted by the State of Ohio as well as provided in this Agreement, including without limitation, the right to make purchases of the goods elsewhere, and to recover incidental and consequential damages.
- Identification of the goods under the Uniform Commercial Code shall occur at the moment SELLER tenders delivery of any of the goods covered by this purchase order.
- Unless otherwise specified, SELLER shall route shipment to insure lowest freight on commodity shipped to destination shown on the Purchase Order Acknowledgement. BUYER shall have a reasonable time to inspect the goods at the place of delivery before paying for or accepting them. All goods received by BUYER shall be received subject to BUYER’s right of inspection and rejection. Defective goods or goods not in accordance with BUYER’s specifications will be held for SELLER’s instruction at SELLER’s risk and, if SELLER so directs, will be returned at SELLER’s expense. If inspection discloses that part of the goods received are defective or are not in accordance with BUYER’s specifications, BUYER shall have the right to cancel any unshipped installment of the goods. Payment for goods on this order prior to inspection shall not constitute acceptance thereof.
- Except for customary quantity variations recognized by trade practice and established by the National Association of Recycling Industries, Inc. in the case of domestic purchases and the Bureau International de la Recuperation in the case of international purchases, goods in excess of those specified will not be accepted and such goods will be held at SELLER’s risk. Buyer may, and at SELLER’s direction shall, return such goods at SELLER’s risk and expense. BUYER’s weights and grading will govern final settlement.
- Classification, weighing, sampling and assaying, or appraising, as done by BUYER according to standard practice pursuant to the standards referred to in Paragraph 6 above, and promptly after receipt of material, shall be accepted as final. After sampling, the material may be placed in process, or commingled or otherwise disposed of by BUYER.
- Unless otherwise provided, prices with respect to the goods specified herein are inclusive of all city, state and federal sales, use, excise and other taxes and charges which might otherwise be applicable to the sale or chargeable against BUYER. The payment of any additional taxes and charges shall be the exclusive obligation of the SELLER, unless BUYER agrees in advance to pay a portion of such taxes and charges. No additional charges of any kind, including charges for boxing, packing, cartage or other extras, will be allowed unless specifically agreed to in advance by BUYER.
- BUYER agrees to purchase the goods only at the price specified in the SELLER’s offer and reserves the right to cancel, without charge to BUYER, any shipment or shipments at a price or prices greater than that specified in the SELLER’s offer. If a price term has been omitted from the SELLER’s offer or this CONFIRMATION, BUYER agrees to purchase the goods at the price last quoted or paid between BUYER and SELLER, or the prevailing market price as of the time BUYER and SELLER agree to delivery herein, whichever is lower. Unless otherwise specified, payment shall be made in US dollars.
- Unless otherwise provided, if BUYER elects to receive the goods in partial shipments pursuant to Paragraphs 1 and 2 above, SELLER shall have no right to demand payment upon the delivery of each shipment of the goods. Payment shall be due and owing at the time the last shipment of goods under this contract is accepted by BUYER.
- SELLER EXPRESSLY WARRANTS THAT ALL THE GOODS COVERED BY THIS SALES ORDER ACKNOWLEDGEMENT OR OTHER DESCRIPTION OR SPECIFICATION FURNISHED BY BUYER WILL BE IN EXACT ACCORDANCE WITH SUCH ORDER, DESCRIPTION OR SPECIFICATION AND WILL BE MERCHANTABLE AND FREE FROM DEFECTS IN COMPOSITION OR PROPERTIES WHICH WOULD RENDER THE GOODS UNSAFE FOR USE IN BUYER’S NORMAL PROCESSING OR MELTING PROCEDURES. SUCH WARRANTY SHALL SURVIVE DELIVERY, AND SHALL NOT BE DEEMED WAIVED EITHER BY REASON OF BUYER’S ACCEPTANCE OR PAYMENT OF SAID GOODS. ANY DEVIATIONS FROM THIS CONFIRMATION OR SPECIFICATIONS FURNISHED HEREUNDER OR ANY OTHER EXCEPTIONS OR ALTERATIONS MUST BE APPROVED IN WRITING BY BUYER.
- SELLER warrants and represents that the goods covered by this order are not being sold or priced in violation of any federal, state or local law or any existing contract of SELLER with any other party.
- No right or interest under this order shall be assigned by either party without the written consent of the other, and no delegation of any obligation owed, or of the performance of any obligation by either party shall be made without the written consent of the other party.
- Waiver by BUYER of a breach by SELLER of any provision of this order shall not be deemed a waiver of future compliance therewith, and all other provisions shall remain in full force and effect.
- If at any time or times hereafter BUYER employs counsel for advice with respect to this order, or to intervene, file a petition, motion, order or other pleading in any such suit or proceeding related to this order, or to attempt to enforce this order against SELLER, the reasonable attorneys’ fees arising from such services, and any expenses, costs and charges related thereto, shall be an obligation owing hereunder by SELLER to BUYER.
- SELLER warrants that the sale or use of the goods sold hereunder shall not infringe on any United States or foreign patent, and SELLER undertakes to indemnify BUYER against all judgements, decrees, costs and expenses resulting from any alleged infringement and to defend, upon written request of BUYER, at its own expense, any action which may be brought against BUYER, its vendees, lessees, licensees, or assigns, under any claim of patent infringement in the use or sale of SELLER’s products.
- This order is subject to cancellation, in whole or in part, at any time if BUYER’s contract for which the goods, articles or materials covered by this order are to be used is altered, cancelled, or the performance thereof suspended, in whole or in part, by or as the result of any law, regulation, order or action by the United States Government or agency thereof prohibiting or restricting (by a discriminatory tax or otherwise) the use or sale of such goods, articles or materials so that such use or sale becomes commercially impracticable within the meaning of section 2-615 of the Uniform Commercial Code as adopted by the State of Ohio.
- The BUYER reserves the right to visit, audit and review the SELLER’s manufacturing, distribution and/or administrative locations after providing reasonable notice and scheduling such a visit with the appropriate SELLER agents. In addition, the BUYER has the right to bring a customer representative and/or a representative from a government regulatory agency (domestic or foreign) on these visits as a participant in such audit and review as required for compliance with (i) Buyer’s (and its customers’) quality programs and certifications, and (ii) applicable governmental laws and regulations; provided however, that as long as the BUYER shall notify SELLER in advance regarding such participation and so long as there is no conflict of interest, competitive disadvantage or other reasonable objection by the SELLER. In the case of government regulatory agency representatives, any objection by the SELLER may be cause for that agency to produce a subpoena requiring their admittance.
- The interpretation, enforcement, validity and construction of this agreement shall be governed by the laws of the State of Ohio. Exclusive jurisdiction and venue regarding any dispute between the BUYER and SELLER shall be with the Federal and State Courts located in Cuyahoga County, Ohio.
- The BUYER shall, when appropriate in most cases, supply the SELLER with product and/or process specifications for the product or service which is being purchased. These specifications may include “Flow Down” specifications, standards and requirements from the final user, national or international standards boards and national or international regulatory agencies which have governance over particular products (example: FDA, FAA, DOD). Included in these standards are industry and customer specific record retention policies, which MUST be followed. It is incumbent on the SELLER acknowledges that it is to be aware of these specifications and requirements and agrees to maintain access to the latest copies of such specifications, standards and requirements as part of its records, and to make such records available to the BUYER as part of an audit and review process.
Last Updated 2016-05-15 TAM
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