Terms and Conditions
TERMS AND CONDITIONS FOR THE ONLINE SALE OF GOODS AND SERVICES
Effective Date: July 26, 2026
These standard terms and conditions (these “Terms and Conditions”) govern the sale of goods and/or materials and/or the provision of any services (“Goods and/or Services”) by Conklin Metal Industries, Inc. (“Seller”) to the person or business entity buying such Goods and/or Services (“Buyer”). These Terms and Conditions are incorporated into each and every purchase order received from Buyer which may establish in addition to these Terms and Conditions essential commercial terms not in conflict with these Terms and Conditions. In the event of any conflicting provisions in any purchase order or any other document received from Buyer, these Terms and Conditions shall control, and Seller shall proceed with the sale under the assumption that these Terms and Conditions are the sole terms and conditions binding on the parties. Buyer and Seller expressly agree that Seller may modify these Terms and Conditions from time to time without notice, and such modifications shall be binding upon Buyer. Accordingly, each request for quote, order, acceptance of Goods and/or Services and/or payment to Seller by Buyer shall be deemed an acknowledgment and acceptance by Buyer of these Terms and Conditions as then in effect. These Terms and Conditions, as may be subsequently modified by Seller from time to time without notice, are incorporated by reference into all documents issued by Seller to Buyer in connection with the sale and/or provision of Goods and/or Services.
1. NO MODIFICATIONS/ ENTIRE AGREEMENT
Seller’s provision of credit to Buyer, if any, acceptance of any purchase order and/or sale or provision of any Goods and/or Services to Buyer are all expressly conditioned upon Buyer’s acceptance of these Terms and Conditions as then in effect. SELLER HEREBY REJECTS ANY TERMS OR CONDITIONS WHICH ATTEMPT TO ALTER, MODIFY OR CHANGE IN ANY WAY ANY PROVISION HEREOF, OR OTHERWISE ATTEMPT TO SUSPEND, CONTRADICT OR ADD TO ANY TERM OR CONDITION CONTAINED HEREIN, AND BUYER HEREBY WAIVES ALL SUCH TERMS OR CONDITIONS; THUS, SUCH SHALL NOT BE BINDING ON SELLER UNLESS EXPRESSLY AGREED TO IN A SEPARATE WRITTEN INSTRUMENT SIGNED BY SELLER’S AUTHORIZED REPRESENTATIVE. SELLER OBJECTS TO ANY DIFFERENT, INCONSISTENT, CONFLICTING, SUPPLEMENTAL OR ADDITIONAL TERMS OR CONDITIONS AND HEREBY REJECTS SUCH, WHETHER CONTAINED IN PREVIOUS OR SUBSEQUENT PROPOSALS OR COMMUNICATIONS (WHETHER ORAL OR WRITTEN) FROM OR WITH BUYER OR IMPLIED BY TRADE, CUSTOM, PRACTICE, COURSE OF DEALING OR USAGE IN THE TRADE. BUYER AND SELLER AGREE THAT THESE TERMS AND CONDITIONS, AS MAY BE SUBSEQUENTLY MODIFIED BY SELLER, ARE ACCEPTED IN GOOD FAITH BY BOTH PARTIES AS THE COMPLETE AND FINAL EXPRESSION OF THE TERMS AND CONDITIONS GOVERNING TRANSACTIONS BETWEEN THEM.
2. ORDERS.
If applicable, final order acceptance by Seller is subject to credit approval. Orders may be placed via the Site, by telephone, by e-mail, or by written purchase order. Buyer may not cancel or modify an order in whole or in part without Seller’s prior written consent, to be given or denied in Seller’s sole and absolute discretion, and which Seller may condition upon an adjustment of price and/or other terms and Buyer’s reimbursement to Seller of its costs and damages in connection with the order and its cancellation. Non-Site orders are accepted at the risk of Buyer. Seller may require order confirmation or additional verification for any non-Site orders (including by telephone, by e-mail, or by written purchase order) and may cancel any order that cannot be verified to Seller’s satisfaction.
Buyer is responsible for avoiding duplicate orders across channels (e.g., placing the same order on the Site and by telephone). Seller may, in its sole discretion, cancel duplicative orders or fulfill only the earliest order. If Buyer remits duplicate payment(s), Seller may apply the earliest payment to the earliest corresponding order and, at Seller’s election, (i) credit any excess to Buyer’s account for future purchases or (ii) refund any excess, in each case net of any non recoverable payment processing fees, chargebacks, bank fees, currency conversion losses, or similar costs. Seller shall have no liability for any bank, card issuer, or processor fees incurred by Buyer arising from duplicate orders or payments.
3. PRICE.
All prices, discounts, and promotions posted on https://www.conklinmetal.com/ (the “Site”) are subject to change without notice. The final price charged for Goods and/or Services may vary from the price advertised on this Site at the time the order is placed. Prices displayed on this Site are Seller’s good faith estimates and are subject to confirmation by Seller. Seller’s price estimate will be stated in your electronic order confirmation, which constitutes order acknowledgment and is not a binding agreement. Final prices may vary based on multiple factors, including item location and availability or shipping, and Seller will determine final prices in its sole discretion. Posted prices do not include taxes, tariffs, or charges for shipping and handling. All such taxes, tariffs, and charges will be added to your total price and for such items will be itemized in your shopping cart and in your electronic order confirmation; however, all amounts are subject to final confirmation by Seller. Seller will provide final confirmation of applicable taxes, tariffs, and shipping and handling charges—whether by updated electronic order confirmation or other communication—prior to processing or shipment. If the final confirmed amounts differ from the estimates, your total price will be adjusted accordingly, and by placing an order you agree to pay the final confirmed amounts. We strive to display accurate price information; however, we may, on occasion, make inadvertent typographical errors, inaccuracies, or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
Seller may, at any time after receiving an order, (i) impose a surcharge on any Goods or Services or (ii) pass through to Buyer any increase in Seller’s cost of the Goods or Services, including surcharges imposed on Seller by its suppliers (such as increases in raw material costs) and any new or increased tariffs. Any such surcharge, tariff or price increase will apply to Goods or Services scheduled to ship on or after the date the surcharge, tariff or increased cost is incurred by Seller. Seller may implement or adjust these pricing changes without prior notice to Buyer. In all cases, the purchase price is binding on Seller only upon shipment of, and/or Buyer’s acceptance of, the affected Goods or Services.
4. DELIVERY AND PERFORMANCE.
Unless specifically agreed to by Seller in a separate signed writing, Seller does not guarantee any certain date of delivery and Seller shall not be liable to Buyer for any losses, costs, damages, charges or expenses incurred by Buyer or any other person or entity arising directly or indirectly out of a failure to deliver on any particular date, nor will any delay entitle Buyer to terminate or rescind its purchase. Time for delivery is not of the essence and shall not be made so by the service of notice from Buyer of any certain required date of delivery. Seller reserves the right to defer delivery, to cancel the order or reduce the volume of Goods and/or Services delivered, all without liability of any kind whatsoever to Buyer, if Seller is prevented from or delayed in the carrying on of its business due to causes beyond Seller’s control, including, without limitation, strikes, lockouts or other labor difficulties, floods, fires, earthquakes, hurricanes or other natural disasters or unusually severe weather conditions, embargoes, war or other outbreak of hostilities, acts of terrorism, acts of God, acts of Buyer, pandemics and/or epidemic, public health emergency, market shortages, unavailability of Goods and/or Services or necessary materials, supplies or transportation services, any shift in raw material costs that prohibit or materially reduce the supply of Goods and/or Services or necessary materials or supplies from Seller’s suppliers, inability to obtain shipping space, machinery breakdowns, labor shortages, labor disputes, failure or utilities, internet, or communications networks, delays of carriers or suppliers, governmental acts and regulations or other contingency the non-occurrence of which was a basic assumption on which the purchase order was accepted. In such a case, Seller shall have no obligation to purchase substitute goods or make other substitute arrangements to complete delivery to Buyer or to ship substitute goods from any other facility.
For clarity, allocation of risk of loss is governed by Sections 10 and 21 (and the applicable Incoterm for cross border shipments), and Seller’s retention of title under Section 15 does not alter that allocation.
5. INSTALLMENTS.
Unless otherwise expressly agreed with Buyer by Seller in a separate written document, Seller shall have the right to make delivery in installments. All installments shall be separately invoiced and paid as billed without regard to subsequent deliveries. Failure of Buyer to pay for any installment when due shall excuse Seller from making further deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept and pay for remaining installments.
6. WARRANTY; DISCLAIMER.
We do not manufacture or control any of the products or services offered on our Site. The availability of products or services through our Site does not indicate an affiliation with or endorsement of any product, service, or manufacturer. Accordingly, we do not provide any conditions or warranties with respect to the products or services offered on our Site. However, the products and services offered on our Site are covered by the manufacturer’s warranty as detailed in the product’s description on our Site and included with the product. To obtain warranty service for defective products, please follow the instructions included in the manufacturer’s warranty.
YOU AFFIRM THAT WE SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY OR CONDITION CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER’S FAILURE TO HONOUR ITS WARRANTY OBLIGATIONS TO YOU.
Seller will furnish Goods and/or Services of the quality specified; provided, however, that Seller’s affirmative statements, if any, with regard to the character of Goods and/or Services in product information, including, but not limited to, on the Site, in price lists or other information, shall not be binding. If Goods and/or Services are defective or are not in substantial conformity with the specifications, subject to the tolerances and variations consistent with usual trade practices, Seller will, at Seller’s election, replace such with conforming Goods and/or Services or allow Buyer a credit or refund for the purchase price. Upon receipt of consent from Seller to return allegedly defective or nonconforming Goods and/or Services, and shipping instructions, Buyer shall return to Seller F.O.B. Destination, all such Goods and/or Services allegedly not conforming to specifications, or otherwise allegedly defective. Goods and/or Services returned must be returned in the same condition as when received by Buyer. Goods and/or Services found by Seller to be defective or not to conform to specifications shall, upon return, be replaced or repaired by Seller without any additional charge, or, at Seller’s option, Seller may credit the purchase price of such Goods and/or Services to Buyer by issuing Buyer credit or by setting off the purchase price of such Goods and/or Services against monies owed to Seller by Buyer. Returned Goods and/or Services which are found by Seller to be free from defect and to conform to specifications or otherwise not suffer from a defect or nonconformity which originated with Seller shall be held at Seller’s facility for Buyer’s disposition. Should no such disposition instructions be received from Buyer within thirty (30) days of notice of Seller’s finding, Seller may do with the Goods and/or Services as it wishes. Replacement or repaired Goods and/or Services will be warranted for the remainder of the original warranty period.
Buyer agrees that no oral or written representation, guaranty or warranty made by Seller, its employees, agents or representatives, other than as expressly set out in these Terms and Conditions, shall be binding on Seller.
This warranty is expressly in lieu of all other warranties, expressed or implied, and of all other obligations or liabilities on Seller’s part. ALL PRODUCTS AND SERVICES OFFERED ON THIS SITE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OR CONDITION WHATSOEVER AND SELLER EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR USE FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. BUYER ACKNOWLEDGES AND AGREES THAT BUYER TAKES SOLE RESPONSIBILITY FOR THE SELECTION OF AND SPECIFICATIONS FOR THE GOODS AND/OR SERVICES AND THEIR FITNESS FOR ANY PURPOSES INTENDED BY BUYER OR BUYER’S CUSTOMER(S).
7. LIMITATION OF SELLER’S LIABILITY.
IN NO EVENT SHALL SELLER’S LIABILITY, REGARDLESS OF THE CAUSE THEREOF, EXTEND BEYOND REPLACEMENT OR REPAIR OF GOODS AND/OR SERVICES OR GIVING BUYER CREDIT FOR THE PURCHASE PRICE OF GOODS AND/OR SERVICES SOLD OR PROVIDED, EITHER AT SELLER’S ELECTION, NOR SHALL SELLER HAVE ANY LIABILITY TO BUYER OR ANY THIRD PARTY FOR LOSS OF TIME, COST OF LABOR EXPENDED, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, AGGRAVATED OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, OR CONSEQUENTIAL DAMAGES RESULTING FROM REJECTION OF FINISHED PARTS BY BUYER OR BUYER’S CUSTOMER(S), REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
8. INDEMNITY.
To the fullest extent permitted by law, Buyer shall, at Buyer’s sole cost and expense, indemnify, defend, release and hold harmless Seller, its officers, directors, agents and employees, from and against any and all claims, demands, lawsuits or proceedings of any kind brought or threatened against Seller and/or its officers, directors, agents and employees, from and against any and all claims, demands, lawsuits or proceedings of any kind brought or threatened against Seller and/or its officers, directors, agents and employees arising out of or related to (i) Buyer’s handling, loading, securing, storage, installation, use, or resale of the Goods and/or Services after delivery, (ii) Buyer’s failure to comply with applicable laws, rules, or regulations, or (iii) Buyer’s negligence, willful misconduct, or breach of these Terms and Conditions, and Buyer shall pay all costs, expenses, damages, liabilities and losses incurred by Seller, its officers, directors, agents and/or employees, as a result of any such actual or threatened claim, demand, lawsuit or proceeding, including, but not limited to, reasonable attorney’s fees.
9. SECURING LOADS.
If Buyer picks up Goods and/or Services or engages its own carrier, Buyer (and such carrier) is responsible for securing the load and flagging or otherwise marking such for transport from Seller’s facility. If Seller delivers Goods and/or Services using its own trucks or arranges delivery through a common carrier selected by Seller, Seller (or the carrier selected by Seller) is responsible for securing the load and flagging or otherwise marking the Goods and/or Services for transport. In no event shall Seller have any liability to Buyer or any third party for any (i) damage to, or loss of, any vehicle used to carry Goods and/or Services picked up by Buyer from Seller’s facility, whether such vehicle belongs to Buyer or a third party, or to any other vehicle belonging to a third party; (ii) damage to, or loss of, the Goods and/or Services picked up by Buyer from Seller’s facility or to a third party’s property (real or personal); (iii) injury to any person (whether the driver of the vehicle carrying the Goods and/or Services or an unassociated third person); or (iv) any other loss of any kind, resulting from a failure by Buyer or Buyer’s carrier to properly secure a load of Goods and/or Services or flag or otherwise mark for transportation such Goods and/or Services purchased from Seller and transported from Seller’s facility in Buyer’s vehicle or on a vehicle belonging to Buyer’s carrier. To the fullest extent permitted by law, Buyer shall, at Buyer’s sole cost and expense, indemnify, defend, release and hold harmless Seller, and its officers, directors, agents and/or employees, from and against any and all claims, demands, lawsuits or proceedings of any kind brought or threatened against Seller and/or its officers, directors, agents and employees resulting, in whole or in part, from any failure by Buyer or Buyer’s carrier to properly secure a load of Goods and/or Services or flag or otherwise mark for transportation such Goods and/or Services purchased from Seller and transported from Seller’s facility in Buyer’s vehicle or on a vehicle belonging to Buyer’s carrier, and Buyer shall pay all costs, expenses, damages, liabilities and losses incurred by Seller, its officers, directors, agents and/or employees, as a result of any such actual or threatened claim, demand, lawsuit or proceeding, including, but not limited to, reasonable attorney’s fees.
10. CLAIMS AGAINST COMMON CARRIERS.
If Buyer picks up Goods and/or Services or engages its own carrier, delivery of Goods and/or Services to such carrier shall constitute delivery to Buyer, and upon such delivery to Buyer’s carrier, all risk of damage shall be borne by Buyer, and Buyer shall be responsible for obtaining insurance, if desired, on the Goods and/or Services while in transit. If Seller delivers Goods and/or Services using its own trucks or arranges delivery through a common carrier selected by Seller, risk of loss remains with Seller until delivery to Buyer at the designated destination. For cross-border shipments, risk of loss and responsibility for filing claims shall follow the applicable Incoterm (Incoterms 2020) stated in the order documentation.
If Buyer discovers a shortage in Goods and/or Services delivered or if the Goods and/or Services have been damaged in transit, Buyer must make a note to that effect upon the receipt Buyer gives the carrier or his, her or its agent. Also, Buyer must request that a similar notation be made on the freight bill. Damaged Goods and/or Services must not be unloaded until inspected and such damage noted in writing. Claims will be filed by the party bearing the risk of loss during transit. Failure to comply with this Section shall be deemed an express acceptance of the Goods and/or Services by Buyer in an “AS IS” condition with no right to credit, refund or any other remedy, except where Seller bears the risk of loss.
Retention of title under Section 15 does not affect the transfer of risk of loss under this Section.
11. ARBITRATION AND COLLECTION.
BUYER AGREES TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN BUYER AND SELLER ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF GOODS AND/OR SERVICES THROUGH THIS SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
Any dispute, claim, or controversy arising out of or relating to these Terms and Conditions or the sale of Goods and/or Services will be resolved by binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules then in effect. The arbitration will be conducted before a single arbitrator, except that if the aggregate claims and counterclaims exceed $500,000.00 (exclusive of interest and attorneys’ fees), the matter will be heard by three (3) arbitrators. The seat and venue of the arbitration will be the state and county of Seller’s principal place of business, and the language of the arbitration will be English. The Federal Arbitration Act will govern the interpretation and enforcement of this arbitration agreement, together with applicable state law (without regard to conflicts-of-law rules).
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision is void, voidable or otherwise invalid, and the enforceability of any class, collective, or representative action waiver. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitration, including the existence of the dispute, submissions, evidence, and the award, will be confidential, except to the extent disclosure is necessary to enforce or challenge the award or as otherwise required by law.
Arbitration will proceed on an individual basis only; class, collective, consolidated, or representative arbitrations are not permitted, and the arbitrator may not consolidate proceedings without the parties’ written consent. Either party may bring an individual action in a court of competent jurisdiction for purely monetary claims within that court’s small-claims jurisdiction. Notwithstanding the foregoing, either party may seek provisional or interim relief in a court of competent jurisdiction, including temporary restraining orders, preliminary injunctions, replevin, and the perfection or enforcement of security interests or liens, pending final determination by the arbitrator.
If any provision of this arbitration clause is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.
If any default is made in payment of amounts due for the sale of Goods and/or Services or upon any other breach of these Terms and Conditions, as such may be subsequently modified by Seller from time to time without notice, Buyer agrees to pay Seller’s reasonable costs of collection and/or compliance, including, but not limited to, reasonable attorneys’ fees and costs, not to exceed the amount allowed by any applicable statute.
12. FREIGHT CHARGES.
Any change in applicable freight rates, including, but not limited to, any applicable fuel surcharges assessed by Seller or passed along by Seller to Buyer from a third party carrier, between the date of quotation and/or acceptance of purchase order and the time of shipment will result in a corresponding change in price. If the agreed purchase price was based on there being sufficient Goods and/or Services for a carload or truckload shipment and Buyer has ordered shipments to be made in less than carload or truckload amounts, then Buyer must pay the difference between carload/truckload and less than carload or truckload freight. If priced for delivery to a job site, delivery will be to the nearest safe and accessible public road or street adjacent to the site. Seller’s price does not include unloading or movement beyond curbside. Buyer is responsible for unloading, site access, and any additional costs for special equipment, inside delivery, or redelivery.
For international shipments outside the United States, Buyer will be responsible for all customs brokerage, customs examination fees, disbursement fees, import duties and taxes, and other import-related charges unless Seller expressly agrees otherwise in a separate signed writing or a different Incoterm (Incoterms 2020) is specified in the order documentation.
Except as otherwise provided herein, Seller shall not be responsible for freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges where Buyer picks up Goods and/or Services or engages its own carrier. If such charges are by the terms of sale included (whether in the price itself or as a separate line item), any increase in rates, including, but not limited to, any increase in applicable fuel surcharges, whether assessed by Seller or passed along by Seller to Buyer from a third party carrier, becoming effective prior to the shipment date of the Goods and/or Services ordered, shall be the responsibility of Buyer.
13. TAXES, DUTIES, BROKERAGE AND OTHER FEES.
In addition to the agreed purchase price for Goods and/or Services, Buyer shall pay to Seller any and all applicable taxes imposed by any present or future law on the sale, manufacture, delivery, use and/or other handling of Goods and/or Services, whether such taxes are characterized as goods and services tax, sales tax, use tax, excise tax, value added tax, business transfer tax or otherwise (collectively, “Taxes”), but excluding income taxes normally paid by Seller. When shipping is ExWorks or F.O.B. shipping point (as defined by Incoterms 2020) from a non-United States’ location, the price quoted shall not include any applicable duties or brokerage fees. In such a case, Buyer shall pay to Seller’s designated customs broker or Buyer’s own custom broker, as applicable, any and all such brokerage fees, surcharges, customs, duties and Taxes (collectively, “Brokerage Fees”), and, to the fullest extent permitted by law, Buyer agrees, at Buyer’s sole cost and expense, to indemnify, defend, release and hold harmless Seller, its officers, directors, agents and employees, from and against any and all claims, demands, lawsuits or proceedings of any kind brought or threatened against Seller and/or its officers, directors, agents and employees for any such unpaid Brokerage Fees, and Buyer shall pay all costs, expenses, damages, liabilities and losses incurred by Seller, its officers, directors, agents and/or employees, as a result of any such actual or threatened claim, demand, lawsuit or proceeding, including, but not limited to, reasonable attorney’s fees.
14. FINANCIAL RESPONSIBILITY.
Reasonable doubt on the part of Seller concerning the financial responsibility of Buyer (including, but not limited to, Buyer’s failure to pay on the net due date for Goods and/or Services) shall entitle Seller to stop operation/production, decline shipment, or stop any Goods and/or Services in transit without any liability whatsoever to Buyer, until such time as the Goods and/or Services have been paid for or until Seller is furnished reasonably satisfactory proof of Buyer’s financial responsibility, as determined in Seller’s sole and absolute discretion. If Seller suspends performance and later proceeds with fulfillment of such order, Seller shall be entitled to such extension of time for performance as is necessitated by the suspension. If Seller has agreed with Buyer to accept payment for any shipment by credit card, such credit card shall be charged at checkout for e-commerce orders, or at shipment or delivery for phone orders and purchase orders, as applicable.
Seller may also suspend performance, refuse shipment, or require cash in advance if Seller reasonably suspects fraudulent, unlawful, or abusive activity associated with Buyer, Buyer’s account or order(s).
15. TITLE.
Notwithstanding delivery and passing of risk, Goods and/or Services sold by Seller to Buyer shall remain the property of Seller until Buyer has paid to Seller the agreed purchase price therefor (together with any accrued interest) and no other sums whatsoever are due from Buyer to Seller therefor. The retention of title in this Section is independent of and does not affect the allocation of risk of loss under Sections 10 and 21. Until title to the Goods and/or Services passes to Buyer in accordance with these Terms and Conditions, Buyer shall: (i) hold the Goods and/or Services on a fiduciary basis and shall not part with possession otherwise than in the ordinary course of business; (ii) take proper care of the Goods and/or Services; (iii) take all reasonable steps to prevent damage to or deterioration of the Goods and/or Services; and (iv) keep the Goods and/or Services free from any charge, lien or other encumbrance. From delivery until title to the Goods and/or Services passes to Buyer, Buyer shall insure the Goods and/or Services for their full value with a reputable insurer, and on request, Buyer shall produce the policy or policies of insurance to Seller. Further, until title to the Goods and/or Services passes to Buyer, Buyer shall hold the proceeds of any claim under any such insurance policy or policies in trust for Seller and shall immediately account to Seller with the proceeds.
16. PURCHASE MONEY SECURITY INTEREST (“PMSI”).
In accordance with the UCC, Buyer hereby grants, and Seller hereby retains, a PMSI in all Goods and/or Services sold by Seller to Buyer, along with any products into which such Goods and/or Services are converted or included by Buyer and the proceeds of sale or other transfer by Buyer of any and all said products or of the Goods and/or Services themselves, until such time as Seller is fully paid all amounts owing by Buyer for such Goods and/or Services, at which time said PMSI shall be immediately released. In the event Seller is not timely paid for any Goods and/or Services, in addition to any other rights to which Seller may be entitled hereunder or at law or equity, Seller shall have all rights granted under the UCC in regard to enforcement of its PMSI. Seller reserves the right to, and Buyer acknowledges and agrees that Seller may, notify any of Buyer’s secured creditors of Seller’s PMSI. Buyer also authorizes Seller to file with appropriate authorities financing statement(s) and/or other documents deemed necessary by Seller to give notice of Seller’s PMSI. Buyer shall take all reasonable steps and cooperate with Seller in perfecting Seller’s PMSI.
17. TERMINATION.
If, at any time, (i) Buyer fails to pay to Seller any amount in full when due, or otherwise fails to perform any other obligation owed to Seller, (ii) Buyer becomes insolvent or makes an assignment for the benefit of creditors or is adjudged bankrupt or a receiver or trustee of Buyer’s property is appointed, (iii) a levy, execution or attachment is made of any material portion of Buyer’s property, (iv) Seller reasonably suspects that Buyer is engaged in fraudulent, deceptive, or unlawful activity, including payment fraud, identity theft, unauthorized chargebacks, resale in violation of law, or misuse of the Goods and/or Services, or (v) Seller determines, in its sole discretion, that proceeding with fulfillment or delivery would expose Seller to undue risk of loss, fraud, or regulatory non compliance, Seller may, in its sole and absolute discretion, terminate the contract with Buyer for the purchase and sale of Goods and/or Services as created hereby and refuse to make further deliveries and/or repossess any Goods and/or Services for which Seller has not been paid in full (in cash or cleared funds) or continue to perform but refuse to make any shipments except upon the receipt of payment in full (in cash or cleared funds) prior to shipment. All amounts payable to Seller are due immediately upon termination pursuant to this Section despite any other provision to the contrary herein.
Seller may, with or without notice, suspend or cancel any order, refuse shipment or delivery, require cash in advance or additional verification, disable or terminate Buyer’s online account(s), and/or notify law enforcement or payment processors if Seller suspects fraudulent, deceptive, or unlawful activity. Seller shall have no liability to Buyer for exercising rights under this Section 17, and Buyer shall remain responsible for all amounts then due and any costs incurred by Seller.
18. CONTROLLING LAW.
These Terms and Conditions and the contract by and between Buyer and Seller for the purchase and sale of Goods and/or Services created hereunder is deemed made in Georgia and shall be governed as to validity, interpretation, construction, effect, and in all other respects, by the laws of the State of Georgia, without giving effect to the conflict of laws principles thereof. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions or the sale of goods or services from Seller to Buyer. Notwithstanding the foregoing, for international shipments, the mandatory import, customs, tax, and consumer protection laws of the destination jurisdiction will apply to the extent they cannot be excluded by contract, without affecting the choice of Georgia law for all other matters.
19. WAIVER.
Neither any failure nor any delay on the part of Seller in exercising any rights hereunder shall operate as a waiver of any of Seller’s rights. Any waiver by Seller of any breach of, or any default under, any provision of these Terms and Conditions by Buyer will not be deemed a waiver of any subsequent breach or default. All rights and remedies granted herein are in addition to all remedies available at law or in equity.
20. PAYMENT TERMS.
Payment in full is due on or prior to delivery unless credit terms are extended. Issuance of credit to Buyer by Seller shall be in Seller’s sole and absolute discretion. Time shall be of the essence in payment. No payment shall be deemed to have been received until Seller has received cleared funds. No discount is allowed if payment of other invoices to Buyer are past due. Freight charges, surcharges and other special charges of any kind are not subject to a discount.
Seller accepts payment by (i) major credit and debit cards, (ii) ACH, (iii) wire transfer, (iv) check (subject to clearance), and (v) purchase order where Seller has extended credit terms to Buyer in writing. The accepted methods for a given order will be indicated at checkout or on the invoice. For e commerce orders paid by card, Buyer authorizes Seller to charge the card at checkout. For telephone or e-mail orders and purchase orders: (A) card payments may be charged at order acceptance, shipment, or delivery (as indicated on the invoice); (B) ACH and wire payments are due as stated on the invoice and are deemed received when funds are irrevocably credited to Seller’s account; and (C) checks are deemed received only upon clearance. Seller may require prepayment in funds, may decline any payment method, or may require an alternate method if any payment is rejected, reversed, or subject to suspected fraud.
Where permitted by law, Seller may assess a reasonable surcharge, convenience fee, or pass through of third party processing costs for certain payment methods disclosed at checkout or on the invoice. Buyer is responsible for all bank, transfer, intermediary, and correspondent fees so that Seller receives the full invoiced amount. In the event of duplicate payments, refunds (if any) will be net of non recoverable processor or bank fees as set forth in Section 2.
In the event Buyer fails to make payment to Seller of any amounts due and owing (including any applicable surcharge or freight charge) by the net due date, Seller may charge interest on the outstanding balance at an annual rate of 18% or the highest rate allowed by law (whichever is less) until paid in full. Payments after accrual of such interest charges shall be applied first against such interest charges and secondly against past due invoices. In the event of any such failure to make timely payment, Seller reserves the right to revoke credit terms, if any, extended to Buyer. Buyer’s account shall also be charged with any fees associated with insufficient funds.
Buyer shall make all payments due to Seller for Goods and/or Services sold without any deduction whether by way of set-off, counterclaim, abatement or otherwise, unless Buyer has a valid court order requiring an amount equal to such deduction to be paid by Seller to Buyer. All payments must be made in U.S. dollars unless Seller expressly agrees in writing to another currency. Any required withholding or deduction on cross border payments will be borne by Buyer, and all amounts due shall be grossed up so that Seller receives the full amount it would have received absent such withholding or deduction.
In no event shall Seller be responsible for any costs associated with the processing of invoices to Buyer with a third party or otherwise at Buyer’s request and any such costs shall be separately paid or handled by Buyer at its sole cost and expense.
21. EXPORT AND INTERNATIONAL SHIPMENTS.
If Buyer exports the Goods and/or Services outside of the United States, Buyer agrees to comply with all relevant export, import, and customs laws and regulations, including, without limitation, those of the United States (including the Export Administration Regulations and sanctions administered by OFAC) and the destination country, so as to ensure that the Goods and/or Services are not exported, re exported, transferred, sold, or used in violation of any applicable law or regulation.
Unless Seller expressly agrees otherwise in a separate signed writing, Buyer will be the importer of record for any shipment outside the United States (including into any non-U.S. jurisdiction), will arrange customs clearance, and will be solely responsible for all filings, permits, licenses, and compliance obligations, as well as all duties, tariffs, taxes, brokerage, and other import related fees and charges. If Seller agrees to act as importer of record or to arrange customs clearance, Buyer will provide all required information and authorizations and will reimburse Seller for all related costs and charges.
For cross border shipments, the applicable Incoterm (Incoterms 2020) will be stated on the order acknowledgment, invoice, or shipping documents (e.g., DAP Buyer’s site, FCA Seller’s facility). Risk of loss will transfer in accordance with the stated Incoterm and these Terms and Conditions. For the avoidance of doubt, where no Incoterm is specified, shipments outside the United States will be FCA Seller’s facility (Incoterms 2020), and risk of loss transfers to Buyer upon Seller’s tender to the first carrier, without regard to Seller’s retention of title under Section 15.
Seller will provide customary commercial documentation in its possession (e.g., commercial invoice, packing list, and country of origin information reasonably available to Seller). Seller does not warrant eligibility for preferential tariff treatment under any trade agreement, but will, upon reasonable request and to the extent available, provide origin information necessary for Buyer’s assessment of preferential treatment. Buyer is solely responsible for claiming any preferential treatment and for any penalties or assessments arising from its claims.
Buyer represents and warrants that neither Buyer nor any of its owners, affiliates, or end users are listed on any denied or restricted party list and that the Goods and/or Services will not be used for any prohibited end use under applicable U.S. law or the law of the destination country. Buyer will not request that Seller participate in any boycott not sanctioned by the United States.
22. ASSIGNMENT.
Buyer may not assign its rights or obligations hereunder (whether voluntarily, involuntarily, by operation of law, transfer of majority or controlling interest or otherwise) without the prior written consent of Seller. These Terms and Conditions shall be binding upon Buyer and its successors and permitted assigns.
23. SEVERABILITY.
If any provision of these Terms and Conditions shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and Conditions, and the remaining Sections shall continue in full force and effect.
24. EXCLUSIVE AGREEMENT.
The contract by and between Buyer and Seller for the purchase and sale of Goods and/or Services created hereby constitutes the entire agreement by and between Buyer and Seller with regard to the subject matter hereof and shall exclusively determine the rights and obligations of Buyer and Seller with regard to the purchase and sale of Goods and/or Services, any prior course of dealing, custom or usage of trade or course of performance notwithstanding, and may not be modified by Buyer except in separate writing signed by an authorized agent of Seller.
25. FOREIGN CORRUPT PRACTICES ACT.
Seller, in connection with the sale of Goods and/or Services to Buyer hereunder, and Buyer, while acknowledging that it is an independent contractor from Seller, in connection with any purchase order, the purchase of Goods and/or Services hereunder and the resale of such, agree to comply with the United States’ Foreign Corrupt Practices Act, as amended from time to time (the “FCPA”), by not paying, offering or agreeing to pay, authorizing the giving of, or causing to be paid, directly or indirectly, any money or other thing of value to any foreign official (as defined in the FCPA) to obtain or retain business or influence such foreign official in the performance of his or her duties.
26. PRIVACY.
Seller respects Buyer’s privacy and is committed to protecting it. Our Privacy Policy, available at https://www.conklinmetal.com/PrivacyPolicy, governs the processing of all personal data collected from Buyer in connection with Buyer’s purchase of Goods and/or Services through the Site.
27. MARKETING AND LOGO USE.
Buyer grants Seller a limited, nonexclusive, royalty free license to use Buyer’s name and logos solely to identify Buyer as a customer and in Seller’s marketing materials, customer lists, case studies, proposals, and on Seller’s website. Seller will comply with Buyer’s reasonable brand guidelines provided in writing and will promptly cease use upon Buyer’s written notice.