ENTIRE AGREEMENT: These Terms and Conditions of Sale (“Terms“) are incorporated into any contract for the sale of goods by Maximum Metals, LLC (“Seller‘) to the buyer of such goods (“Buyer”) and these Terms, together with any price, delivery, payment or similar terms provided by Seller, shall constitute the entire agreement between the parties regarding all goods purchased from Seller. No change to or modification of these Terms shall be binding upon Seller, unless signed by its authorized representative. If Seller is deemed to have made an offer to Buyer, acceptance shall be limited to these Terms and Seller hereby notifies Buyer of Seller‘s objection to any additional, missing or different terms in Buyer‘s acceptance. If Buyer is deemed to have made an offer to Seller, Seller‘s acceptance is expressly conditioned upon Buyer‘s assent to any additional, deleted or different terms (from Buyer‘s offer) in these Terms. No change to these Terms will be binding upon Seller, unless signed by an authorized representative of Seller.
LATE CHARGES AND COSTS: Buyer shall pay interest at the rate of 1.5% per month on all overdue contract or invoice balances. Buyer further agrees to pay all costs and expenses, including reasonable attorneys’ fees, incurred by Seller in collecting overdue contract or invoice balances or in otherwise enforcing the terms and provisions of this contract.
APPLICABLE LAW AND JURISDICTION: This contract shall be governed and construed in accordance with the laws of the State of North Carolina, without regard to principles of conflicts of law. Buyer hereby consents to the personal jurisdiction of the state and federal courts in North Carolina with regard to any lawsuit arising out of this contract or any goods or services provided by Seller to Buyer or any other agreement, obligation or transaction between Seller and Buyer.
WARRANTIES: Seller warrants that the purchased goods will conform to the written specifications agreed to by the parties, subject to customary tolerances and variations. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCE, SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO GOODS PURCHASED FROM SELLER, AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES. WHETHER AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.In the event that the purchased goods are not as warranted, Buyer’s sole remedy will be, at Seller’s election, replacement of the defective goods or return of the amount paid for such defective goods. In no event shall Buyer be entitled to claim or recover any direct, indirect, incidental or consequential damages from Seller of any nature whatsoever pertaining to goods sold by Seller to Buyer, including damages for lost profits, down time or loss of use. If, notwithstanding the foregoing, Seller is determined to be obligated to Buyer for any damages or costs related to the goods purchased by Buyer, including without limitation damages related to de nonconformities in the goods or failure to comply with delivery schedule or other obligations, then whether such claim is in contract, tort, warranty or otherwise, Seller’s liability will not exceed the price paid by Buyer to Seller for the goods to which the claim is related. These provisions allocate between Seller and Buyer the risks regarding any claim related to the goods and Seller’s pricing to Buyer reflects such allocation of risk and the foregoing contractual limitation of Seller’s liability.
CREDIT APPROVAL: Acceptance of any order submitted by Buyer shall be subject to the sole and exclusive discretion of Seller and to credit approval by Seller. If, after initial credit approval, Buyer‘s credit becomes unsatisfactory to Seller, in its sole discretion, or if Seller for any reason deems itself commercially insecure, or if Buyer fails to comply with any obligation to Seller or any of these terms and conditions, Seller reserves the right to terminate any order upon written notice to Buyer, or to condition the sale or shipment of the goods upon Buyer providing satisfactory security or cash payment in advance. In that event, Seller shall have no liability to Buyer for such termination and Buyer shall not be entitled to assert any claim against Seller for such termination.
SECURITY INTEREST:Buyer grants to Seller a purchase money security interest in the purchased goods, and the proceeds and products thereof, to secure payment of the purchase price for such goods. In addition, to secure payment of the purchase price for goods sold by Seller to Buyer, Seller may require Buyer to grant a security interest in certain equipment, vehicles, real property, or other assets of Buyer, sufficient in form and amount, in Seller‘s sole discretion, to secure payment of such purchase price. Seller may file any UCC financing statement or other appropriate notice or document necessary or desirable to perfect this security interest. Buyer hereby appoints Seller as its attorney–in–fact to execute and/or file any documents which may be necessary or desirable in connection with the perfection of the security interest granted herein, which power of attorney is coupled with an interest and irrevocable.
PRICES: All prices are based upon Buyer‘s acceptance of over–run or under–run on each individual item based on standard shipping tolerances (or a tolerance of +/– 20%, whichever is greater), unless an exact count is specified as a condition of the order or contract.
ORDER CANCELLATION AND RETURNED GOODS: No order in the process of production is subject to cancellation, deferment or change in specifications without written agreement by Seller. Cancellation charges shall be determined by Seller, in its sole discretion, and will include cost of all labor and material ordered by Seller or in process for the Buyer’s order.
FORCE MAJEURE: Seller shall not be liable for any default in, delay, reduction, or failure of, delivery due to causes beyond its control, including, without limitation, strikes, floods, lock outs, disputes or disagreements resulting in work stoppages, inability to timely acquire the goods from Seller’s supplier for reasons beyond Seller’s control, embargoes, government regulations, military service, war, delays by carriers, lack of shipping facilities, unavoidable casualties, fires, storms, explosions, epidemics, civil disturbances, acts of God or public enemy, or any other causes or conditions in addition to the foregoing which are beyond Seller’s control.
PASSAGE OF TITLE AND RISK OF LOSS:Unless otherwise agreed in writing, all shipments of goods are F.O.B. point of shipment. Title and risk of loss to such goods pass to the Buyer upon delivery to the carrier at the point of shipment.
RETURN OF GOODS: No credit will be allowed for goods returned without written permission from Seller. A deduction will be made from any credits issued on all returned goods to cover cost of handling or other costs, including charges imposed by Seller’s supplier. Goods must be in original condition and original packaging, must be accompanied by Seller’s packing list or invoice, and must be returned in accordance with Seller’s shipping instructions within 30 days after receipt of permission to return such goods.
WAIVER: No waiver by either party, whether express or implied, of any provision of this contract or any breach or default by the other party, shall constitute a continuing waiver or waiver of any other provision or provisions of this contract and no such waiver by either party shall prevent such party from enforcing any and all provisions of this contract as to any subsequent breach or default by the other party under any provisions of this contract.
CUMULATIVE RIGHTS: All rights and remedies of Seller under this contract are in addition to Seller’s other rights and remedies provided by law and are cumulative, not alternative.
SEPARABILITY: If any provision of this contract is or becomes, at any time, unenforceable under any law, rule, or regulation, the other provisions of this contract shall not be affected and shall continue in effect.
SUCCESSORS AND ASSIGNS: This contract is binding on the successors and assigns of the Parties.
MODIFICATION: This Agreement may not be amended, revoked, changed, or modified in any way, except in a writing signed by the Parties.
