Terms and Conditions

GLOBAL TERMS & CONDITIONS OF SALES

Please read this document carefully. It contains important information about your rights and responsibilities as well as limitations and exclusions.

Unless otherwise specified by Seller, all offers and sales by Seller, whether for goods or services, are expressly conditioned on and subject to this Agreement. A request for an offer or placing an order with Seller constitutes acceptance of this Agreement and a representation that Purchaser is solvent. Seller’s receipt, acknowledgement, or acceptance of forms and documents from Purchaser are for Seller’s internal use and do not alter this Agreement.

Definitions.

As used in the Terms and conditions, the following terms have the following meanings:

  • “Agreement” means these Global Terms and Conditions of Sales and any additional proposal, contract, or agreement bound by these Global Terms and Conditions of Sales.
  • “Carrier” means a common carrier or a licensed trucker.
  • “Plan and Spec” means that Purchaser will provide Seller with a feasible design and Seller will provide the supplies needed to complete the design.
  • “Project Documents and Obligations” means any plans, specifications, performance requirements, drawings, or scopes of work provided to Seller by Purchaser and any obligations or promises that Purchaser may have to any third party.
  • “Purchaser” means the person or entity, either directly or through an agent, that requests a quotation from Seller or places an order with Seller.
  • “Seller” means Conklin Metal Industries, Inc. and any present or future parent, subsidiary, affiliate, or business unit of Conklin Metal Industries, Inc.

Prices; Proposals; Taxes.

Prices are subject to change at any time without notice, except with respect to orders accepted by Seller and any valid proposals. .

 

All proposed prices and anticipated delivery times are valid for thirty (30) days from the date of a valid, written proposal, unless otherwise noted in such proposal. After thirty (30) days, the proposal is invalid and withdrawn, and all proposed prices and anticipated delivery times are subject to change by Seller without notice. Prices are based upon the limited warranty provided by this Agreement and any different or greater warranty coverage requested by Purchaser may require a price adjustment. The provision of any different or greater warranty coverage is within Seller’s sole discretion and judgment. Unit prices are based on the quantities quoted and are subject to change if the quantity ordered differs from the quantities quoted. Any request from Purchaser for changes in quantity, specifications, scope of work, or other terms, will not be effective unless accepted in writing by Seller, and are subject to appropriate adjustments to price, specifications, delivery date and other terms. Seller reserves the right to correct errors in pricing due to inaccurate or incomplete information or numerical, clerical, or stenographic errors.

Prices do not include any tax or other governmental charge or assessment on the sale, shipment, production, or use of any goods or services unless expressly agreed to in writing by Seller. Regardless of when implemented, Purchaser is liable for any and all taxes, governmental charges, or assessments (other than taxes on or measured by Seller’s income) that are based on or measured by the sale, transportation, delivery, or use of the goods or services purchased by Purchaser and are payable on demand.

Prices do not include the cost of inspections permits or inspection fees and such costs and fees are the sole responsibility of Purchaser.

Terms of Payment.

Unless other terms are specified in writing by Seller, payment is due thirty (30) days from date of invoice. If shipment is delayed by Purchaser, the date of readiness for shipment will be deemed to be the date of invoice for payment purposes. Past due amounts will accrue interest at the greater of 1.5% per month including post-judgment amounts or at the highest rate allowed by law. If, in Seller’s sole discretion or judgment, Purchaser’s financial condition at any time does not justify the terms specified, Seller may require full or partial payment as a condition to commencing or continuing the provision of goods or services in advance of shipment, or if shipment has been made Seller may recover equipment from Carrier or decline to deliver the goods. Title to the goods purchased from Seller will not pass to Purchaser until payment is made in full. Purchaser hereby assigns the right to payment from third persons and grants Seller a security interest in the goods purchased from Seller with authority to file UCC forms.

Shipping; Delivery; Risk of Loss.

Each shipment of goods by Seller constitutes a separate and independent transaction and no provision of goods or services by Seller obligates Seller to continue to provide goods or services to Purchaser in the future. Seller does not guarantee shipping dates or times of arrival. All shipping dates and times of arrival are approximations based on estimates provided by manufacturers, suppliers, or carriers, and are contingent on prompt receipt of all necessary information from Purchaser. Seller will use commercially reasonable efforts to comply with shipping dates and times of arrival. Unless otherwise indicated in writing by Seller, all Plan and Spec shipments are FOB Manufacturer/Supplier (if other than Seller), any deliveries made by Seller are FOB Destination, and all other shipments are F.O.B. Seller’s facility. Purchaser may arrange and pay for its own shipping and handling F.O.B. Seller’s facility at Purchaser’s sole risk and expense, including all costs of shipping, handling, delivery, and any related insurance. Purchaser is liable for any increase in transportation costs that are charged to Seller after its invoice to Purchaser, including any fuel surcharges. Seller may receive certain discounts and rebates from Carrier, which, in Seller’s sole discretion, may be retained in whole or in part by Seller.

 

Seller is not liable for delays in delivery or in performance or failure to manufacture or delivery due to causes beyond its control, including (1) errors or delays in manufacture or by the manufacturer, (2) acts of God, (3) acts of the Purchaser, (4) acts of civil or military authority, (5) unforeseen acts of third parties, (6) strikes or other labor disturbances, (7) epidemics, (8) wars, (9) riots, (10) delays in transportation or car shortages, or (11) inability on account of causes beyond its reasonable control to obtain necessary labor, materials, components, or manufacturing facilities. In the event of any such delay, the date of delivery or of performance will be extended for a period equal to the time lost by reason of such delay.

Cancellation; Acceptance; Return; Claims.

Purchaser may cancel its order only after written notice and payment to Seller of reasonable and proper cancellation charges, in Seller’s sole discretion and judgment.

Standard goods regularly maintained in stock by Seller that can in the normal course of business be resold by Seller and are in condition to be resold may, with Seller’s written consent, be returned by Purchaser for credit less a restocking charge. All returned goods must be shipped to Seller, freight prepaid, at Purchaser’s risk of loss or damage.

For all nonstandard goods, any non-acceptance or cancellation of any order for goods not consented to in writing by Seller entitles Seller to recover cancellation charges which includes the full price of the goods or services as well as all other costs incurred by Seller related to development, design, manufacture, or sale of such goods.

Purchaser must carefully inspect all deliveries of goods shipped by Seller on receipt. Acceptance of any shipment is presumed conclusively on receipt, unless Purchaser provides written notice to Seller within five (5) days after receipt of shipment of any alleged error, shortage, defect, damage, or nonconformity. The notice must specifically describe the alleged error, shortage, defect, damage, or nonconformity. This includes any alleged error, shortage, defect, damage, or nonconformity occurring prior to delivery to Carrier. Any such notice for any alleged error, shortage, defect, damage, or nonconformity occurring prior to delivery must include the original transportation bill signed by Carrier noting that Carrier received the material from Seller in the condition claimed by Purchaser. Failure to deliver such notice within five (5) days establishes Purchaser’s responsibility for prompt payment and waiver of all claims against Seller, including waiver of Purchaser’s right to revoke acceptance. Purchaser is prohibited from back charging Seller or withholding payment, in whole or in part, unless agreed to in writing by Seller.

LIMITED WARRANTY; DISCLAIMER.

Seller is a reseller of goods and provides no warranty for the goods sold. Only those warranties and guarantees offered by the manufacturer of goods sold by Seller are offered to Purchaser and only to the extent that they are transferable to Purchaser. Copies of any such warranties and guarantees will be furnished by Seller on written request by Purchaser. Purchaser assumes all risk and liability arising from Purchaser’s use of the goods and services purchased from Seller and acknowledges that it does not rely on samples, tests, trials, data, catalogs, brochures, publications, statement, advice, recommendation, or instruction regarding Seller’s goods or services.

THIS LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY SELLER WITH RESPECT TO GOODS SOLD OR SERVICES PROVIDED BY SELLER. SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY; ANY IMPLIED WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE; ANY IMPLIED WARRANTY OF NON-INFRINGEMENT; ANY IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE; ANY IMPLIED WARRANTY ARISING FROM ANY USE OF ANY GOODS, OR SELLER’S AND/OR PURCHASER’S CONDUCT IN RELATION TO THE GOODS WHETHER OR NOT THE PURPOSE OR USE OF THE GOODS OR SERVICES HAS BEEN DISCLOSED TO SELLER AND WHETHER OR NOT THE GOODS OR SERVICES ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR PURCHASER’S USE OR PURPOSE. SELLER EXPRESSLY DISCLAIMS ALL SUCH OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND.

LIMITATION OF LIABILITY.

No one other than Seller is authorized to assume any liability for goods and services sold by Seller. Purchaser expressly waives any claim relating to, any samples, tests, trials, data, catalogs, brochures, or other publications provided by Seller, or any statement, advice, recommendation, instruction, or assistance given by Seller in connection with any goods or services provided by Seller.

PURCHASER’S SOLE AND EXLUSIVE REMEDY AGAINST SELLER AND SELLER’S EMPLOYEES, AGENTS, OR SUPPLIERS, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, BREACH OF STATUTORY DUTY, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE, IS LIMITED TO THE AMOUNT ACTUALLY RECEIVED BY SELLER FROM PURCHASER AS THE PURCHASE PRICE OF THE GOODS OR SERVICES THAT ARE THE SUBJECT OF ANY CLAIM.

PURCHASER WAIVES ALL CLAIMS FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING FROM OR RELATING TO ANY INJURY TO PERSONS; LOSS OF VALUE OR USE (INCLUDING WITHOUT LIMITATION, DIMINUTION IN VALUE OR STIGMA DAMAGES); LOSS OF ANTICIPATED REVENUE OR PROFIT; COST OF CAPITAL; DAMAGE TO OR LOSS OF OTHER PROPERTY OR EQUIPMENT; CLAIMS MADE BY END-USERS; OR COST OF SUBSTITUTE SUPPLIES, FACILITIES OR SERVICES.

Drawings, Plans, Specifications; Performance; Regulatory Laws and Standards – Non-Plan and Spec Proposals and Purchases.

Unless otherwise specified in writing by Seller, the provisions in this section apply to all non-Plan and Spec proposals and purchases. Purchaser acknowledges and agrees that it has sole responsibility for ensuring that all goods and services purchased from Seller conform to or comply with the Project Documents and Obligations and any applicable federal, state, or local law, ordinance, regulation, code, or standard. Purchaser assumes full liability and responsibility for any such non-compliance. Drawings, Plans, Specifications; Performance; Regulatory Laws and Standards – Plan and Spec Proposals and Purchases.

Unless otherwise specified in writing by Seller, the provisions in this section apply to all Plan and Spec proposals and purchases. Purchaser acknowledges and agrees that Seller has no liability or responsibility for the design or compliance with federal, state, or local law, ordinance, regulation, code, or standard of any specifications, designs, or drawings furnished by or on behalf of Purchaser to Seller. Purchaser is solely responsible for providing Seller with complete, accurate, and up-to-date specifications, designs, or drawings. Seller is not liable for any errors caused by Purchaser’s failure to provide such specifications, designs, or drawings. Seller will use reasonable efforts to ensure that its proposal complies with the provided specifications, designs, or drawings. If Purchaser has actual or constructive knowledge that Seller’s proposal does not comply with the provided specifications, designs, or drawing and fails to notify Seller prior to purchase, Purchaser will be solely responsible for such non-compliance.

Purchaser represents and warrants that any specifications, designs, drawings, tooling, equipment, materials, or other items furnished by or on behalf of Purchaser to Seller for use in connection with the provision of goods or services by Seller can be used by Seller to provide such goods or services to Purchaser without liability to any other person. Purchaser hereby indemnifies Seller from any liability arising from Seller’s use of any such materials provided to Seller by or on behalf of Purchaser. Purchaser bears all costs of delivering such specifications, designs, drawings, tooling, equipment, materials, and other similar items to Seller’s facility. Seller is not liable for loss, damage, maintenance, repair, or renewal of any tooling or similar item or any equipment furnished by Purchaser, regardless of cause except to the extent (but only to the extent) caused solely by Seller’s gross negligence.

 

General.

Governing Laws. This Agreement is to be construed in accordance with the laws of the State of Georgia without regard to any conflict of laws provision. Notwithstanding convenience of the parties or any venue selection laws, Purchaser agrees to submit to the exclusive jurisdiction of any state court in Fulton County, Georgia, or the Northern District of Georgia in any action or proceeding relating to or arising out of this Agreement.

Survival. This Agreement survives any completion of the sale of or any cancellation or termination of any order of goods or services. Failure by Seller to enforce any of the terms of this Agreement does not constitute a waiver by Seller of that or any other term or provision, and Seller may enforce any such term or provision in any subsequent instance without limitation or penalty.

Headings. The headings in this Agreement have been inserted for convenience only and do not affect or control the meaning or construction of any of the provisions of this Agreement.

Severability. If any term or provision contained in this Agreement is deemed invalid or unenforceable by a court of competent jurisdiction such invalidity or unenforceability does not affect the validity or enforceability of the remaining terms and provisions or the validity or enforceability of the offending term or provision in any other situation different from that giving rise to such invalidity or unenforceability. If the final judgment of a court of competent jurisdiction declares that any term or provision contained in this Agreement is invalid or unenforceable, the court making the determination of invalidity or unenforceability can reduce the scope, duration, or area of the term or provision, delete specific words or phrases, or replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and is consistent with the intention of the invalid or unenforceable term or provision, and this Agreement will be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

Waiver and Modification. No waiver, change, or modification of the Agreement is binding on Seller unless expressly made in writing and signed by an officer or other person authorized by Seller to make such waiver, change, or modification. Seller reserves the right to modify the Agreement at any time without notice, but such modification will not apply to any order for goods or services that was accepted by Seller prior to any such modification. This Agreements supersedes any prior agreement governing the terms and conditions of Seller’s offers and sales. All prior performance, courses of dealing, and industry practices are hereby excluded, objected to, and rejected by Seller and do not apply to any offer or sale by Seller. Nor can such be used to waive, modify, vary, explain, or supplement this Agreement. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition under this Agreement, and no act, omission or course of dealing between Seller and Purchasers operates as or constitutes a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion.

Assignment. Purchaser is prohibited from transferring, assigning, or delegating (by operation of law or otherwise) this Agreement and any of the rights, interests, warranties, guaranties, or obligations under this Agreement without the prior written consent of Seller. Any attempted transfer or assignment of this Agreement or any of the rights, interests, duties, or obligations under this Agreement by Purchaser in violation of this Agreement is void and of no force or effect. Seller may transfer, assign, or delegate (by operation of law or otherwise) this Agreement and any of the rights, interests, or obligations under this Agreement without the consent of Purchaser.

Third Party Beneficiaries. Neither Seller nor Purchaser intends for this Agreement to expressly or implicitly confer on any person or entity, other than Seller or Purchaser and their permitted assigns, any rights, benefits, remedies, obligations, or liabilities, and this Agreement will not operate to confer any such rights or benefits on any such third party.

Indemnification. Purchaser agrees to indemnify, hold harmless and defend Seller (and its employees, subsidiaries, affiliates, successors, suppliers, and agents) from and against any and all claims (whether based on contract, tort, strict liability, or otherwise), judgments, liabilities, damages, losses, expenses, and costs (including, but not limited to, court costs and attorneys’ fees) incurred or suffered by Seller, which relate to or arise out of (1) Purchaser’s or Purchaser’s customer use, handling, installation, sale, distribution, or disposal of any goods purchased from seller, or (2) Purchaser’s breach of any representation, warranty or obligation made by operation of this Agreement. Purchaser will defend any such matter with counsel reasonably acceptable to Seller and Purchaser shall not settle any such matter except with the consent of Seller, which consent will not be unreasonably withheld. If Purchaser fails to promptly and diligently investigate and defend or settle any claim, then Seller has the right, at Purchaser’s cost, expense and risk, from that time forward to have sole control of the defense of the claim and the terms of any settlement or compromise.

Notices. All notices, demands, and other communications under this Agreement must be in writing (including fax or other similar writing) and will be deemed to have been duly given or made as follows:

  • If sent by certified mail, return receipt requested, it will be deemed delivered on the earlier of five (5) days after mailing or actual receipt.
  • If sent by hand or overnight delivery, it will be deemed delivered on receipt.
  • If by fax, it will be deemed delivered on confirmation of receipt of such fax
  • If by email, it will be deemed delivered on confirmation of receipt of such email.

All notices, demands, and other communications sent to Seller must be directed to Seller’s corporate headquarters as designated by Seller on its website.