Terms & Conditions
1. ACCEPTANCE: Taubensee Steel & Wire (“Seller”) agrees to sell the products covered herein on the following terms and conditions of sale which supersedes any additional or inconsistent terms and conditions of purchase of Buyer. Any alterations of Seller’s terms and conditions of sale shall have no force or effect unless otherwise agreed to in writing by Seller. The contract constitutes the entire agreement between Buyer and Seller with respect to the products furnished hereunder. No representation, promise or condition not set forth herein has been relied upon by Buyer or shall be binding on either party hereto. Acceptance by Buyer of the products sold hereunder shall constitute Buyer’s assent to these terms and conditions.
2. PRICING: Seller’s prices are subject to change without notice. The price of Seller’s products shall be the price in effect at time of shipment.
3. CREDIT APPROVAL: Shipments, deliveries and performance of work shall at all times be subject to the approval of the Seller’s Credit Department through approval of customer’s credit application. Not withstanding any other remedies, the Seller may at any time decline to make any shipment or delivery or perform any work due to past due invoices or poor recent credit experience.
4. TERMS OF PAYMENT: Subject to the provisions of CREDIT APPROVAL, terms of payment are Net 30 days from date of invoice. A variable discount will be allowed for early payment. Receipt for deposit of net payment is due within 30 days from the invoice date. Late payment will be subject to interest charges of 1 1/2% per month. Cash discount is NOT allowed on any transportation charges or taxes that may be included in the delivered prices, or on past dueinvoices, or current invoices while older invoices are still outstanding. All payments shall be made in United States currency.
5. TAXES: Any tax or custom duty which Seller may be required to pay or collect as a result of the transaction covered hereby, and which is not covered by a tax exemption certificate furnished by Buyer, is for the account of Buyer and Buyer shall promptly pay the amount thereof to Seller. Where the products covered hereby are to be exported, Seller reserves to itself all rights to drawback of duty paid on materials entering into the manufacture or production of the products exported, and Buyer shall furnish to Seller proof of exportation and all documents necessary tor Seller to obtain payment of such drawbacks. Out of state Buyers intending to pick up orders in Wheeling, Illinois with their own trucks must be registered with the State of Illinois Department of Revenue-Sales Use Tax division and must submit an Illinois Resale Number OR the order will be considered taxable by the State of Illinois and Seller must charge the applicable sales and / or use taxes.
6. CANCELLATION: Orders are not subject to cancellation or modification, in whole or in part, after Seller’s acceptance, except with Seller’s express written consent, and upon payment of a cancellation charge which will cover all costs Incurred by Seller to time of cancellation. If Buyer cancels the order without Seller’s express written consent, the Buyer agrees to pay all costs incurred by Seller and to compensate Seller for any loss of profits that it may suffer in the event that Seller is unable to resell the products at the contract price. Customized or specially ordered material procured by Seller to specifically fill Buyer’s order will be Invoiced to Buyer and shipped upon payment of said cancellation charges.
7. TITLE AND RISK: Unless otherwise stipulated herein, all sales are F.O.B. Seller’s plant and title shall pass to the Buyer upon delivery by the Seller to a carrier for transportation to the Buyer. Title to products sold F.O.B. destination shall pass to the Buyer upon arrival at the specified destination. All products shall be and remain at the risk of the Buyer from and after the time at which title passes. Unless otherwise agreed, Seller reserves the right to select the mode of transportation and the carrier.
8. DELIVERY DATES: Delivery dates set forth herein are subject to change and are predicated on conditions existing at this time. Seller shall exercise its best efforts to deliver within the time quoted but does not guarantee to do so, and shall not be held responsible for any loss or damage of ANY kind or nature whatsoever caused by the delay in delivery irrespective of the cause of such delay.
9. SELLER’S STANDARD PRACTICES AND TOLERANCES: Except to the extent otherwise agreed in writing all products shall be delivered in accordance with the manufacturer’s standard practice and shall be subject to the normal tolerances, variations, and limitations of dimension, weight, shape, composition, mechanical properties, structure, quality, and service conditions consistent with practical testing and inspection methods. Buyer agrees to accept any quantities delivered hereunder which do not vary more than 10% from the contract amount and to pay for such quantities at the contract price.
10. MECHANICAL PROPERTIES-CHEMICAL ANALYSES: Data referring to mechanical properties or chemical analyses are the result of tests performed on specimens obtained from specific locations of the product(s) in accordance with prescribed sampling procedures, any warranty thereof is limited to the values obtained at such locations and by such procedures. There is no warranty with respect to values of the materials at other locations.
11. SHORTAGES OR DAMAGED PRODUCTS: It is the duty of the Buyer (or his representative) to verify all shipments as to both the quantity and the quality of the product delivered prior to signing or initialing the trucking company’s delivery receipt. Seller’s invoice weights, volume, sizes, and tares established in good faith shall govern unless proved erroneous. Variations of one percent or less from invoice quantity of any shipment shall be disregarded. An shortages and / or damaged products must be noted by customer in writing on the delivery receipt. All claims for shortages or for damaged material must be made within ten (10) days after receipt of shipment. ANY SHORTAGE OR DAMAGE CLAIMS NOT NOTED ON A DELIVERY RECEIPT WILL NOT BE HONORED BY SELLER. No claims for damaged material will be recognized beyond its cost to Buyer and Seller shall in no event be liable for handling, storing, or processing costs incurred by Buyer or for any consequential damages resulting from the use of such material. No part of such material shall be returned to Seller without its consent.
12. FORCE MAJEURE: In the event of any delay in the Seller’s performance due to fires, strikes, labor disputes, war, civil commotion, epidemics, embargoes, floods, delays in transportation, shortage of trucks, fuel or other materials, default of failure of carriers or contractors, shortage of labor, acts of God, acts, demands, requirements or requests of any state or government or to any other cause beyond the reasonable control of the Seller whether or not a kind hereinbefore specified, notwithstanding that such cause is operative at the time of making the contract, the Seller shall have such additional time within which to perform this contract as may be reasonably necessary under the circumstances. Notwithstanding the foregoing, if performance of the contract by the Seller be delayed for a period exceeding thirty days by any such cause either party shall at its option be relieved from further responsibility, that in respect of products manufactured or in process of manufacture at the dale of exercise of the option such relief from responsibility shall be subject to the consent of the Seller.
13. WARRANTY: The Seller warrants that all products sold herein are of merchantable quality but unless otherwise herein specified makes no warranty or representation that the products sold are fit for any particular purpose. Save as specifically provided herein, all expressed or implied warranties, whether they be statutory or otherwise, and all representations or conditions as to products are expressly excluded.
14. BUYER’S REMEDIES: If any product furnished to the Buyer shall fail to conform to the contract between the Buyer and the Seller, the Buyer shall give prompt written notification thereof within 30 days from receipt to the Seller. Such non-conforming product shall be held for the inspection of the Seiler and the liability of the Seller in respect thereof shall be limited to the replacement of such product subject to the return of such product or, at the discretion of the Seller, to a return of the sale price less the salvage of scrap value thereof. THE SELLER SHALL IN NO EVENT BE LIABLE FOR THE COST OF ANY VALUE ADDED TO ANY NON-CONFORMING PRODUCT OF FOR ANY SPECIAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES OR THE FACT THAT ANY SUCH PRODUCT SHALL HAVE BEEN NON-CONFORMING. No claim of any kind, whether as to goods delivered or for non-delivery of goods, shall be greater in amount than the purchase price of the goods in respect of which such damages are claimed; and failure to give notice of claim within thirty (30) days from date of delivery, or the date fixed for delivery, as the case may be, shall constitute a waiver by buyer of all claims in respect of such goods. The remedy hereby provided shall be the exclusive and sole remedy of Buyer; and right of the Buyer to consequential and incidental damages is excluded.
15. CLAIMS: Claims for material that does not meet the specification will be considered only for the amount involved that is in excess of 1% of each item shipped at one time by the Seller subject to a minimum of 200 pounds per claim and no portion of Buyer’s inspection and testing costs will be assumed by Seller.
16. LIMITATION OF ACTIONS: Other than claims for damaged and / or non-conforming goods, any action for a breach of contract arising out of Seller’s acceptance of Buyer’s order of products supplied must be commenced within one (1) year after the cause of action has accrued.
17. PATENT INFRINGEMENT: Seller shall have no liability or responsibility with respect to any product supplied by or manufactured to the design of Buyer infringement of any United States or foreign patent and Buyer will indemnify and save Seller harmless from any such claim of infringement including payment of Seller’s attorney’s fees.
18. LABOR WARRANTY: Seller certifies that Seller complies with the Fair Labor Standards Act, as amended, and all regulations and orders issued pursuant thereto.
19. INDEMNIFICATION: Buyer shall comply with and require its agents and employees to comply with all directions, safety notices, warnings and other instructions furnished by Seller, and shall use and require its agents and employees to use reasonable care in the use of the products supplied by Seller. If Buyer fails to observe the provisions of this section, or if any injury or damage is caused, in whole or in part, by Buyer’s failure to comply with applicable Federal, State or local safety requirements, Seller shall have no obligation to Buyer or any other person in respect thereof, and Buyer shall indemnify and hold Seller harmless against any claims, loss or expense for injury or damage arising directly or indirectly from any such failure. Seller specifically disclaims any and all liability arising out of the use of the products supplied hereunder other than the warranty liabilities to the original Buyer.
20. LITIGATION: In the event that Seller is made a party to any litigation or administrative proceedings as a result of its having entered into this agreement and in such proceedings the final judgment or order of the Court of Commission of competent jurisdiction is rendered in favor of Seller, Buyer agrees to reimburse Seller for its reasonable costs incurred in defending such suit or other proceedings, including reasonable attorney’s fees.
21. GOVERNING LAW; REMEDIES: The rights and obligations of the parties hereto and the construction and the effect of any contract formed pursuant hereto shall be governed by the laws of the State of Illinois. If the Buyer fails to fulfill the terms of payment of any invoice or if the financial or business condition or responsibility of the Buyer shall become impaired or unsatisfactory to the Seller, the Seller reserves the right to withhold delivery of all or part of the products subject hereto, without prejudice to any other legal or equitable remedy, until past due payments are made and satisfactory assurance of payment is received. Upon Buyer’s breach of this agreement, Buyer agrees to pay all costs, including reasonable attorney’s fees, incurred by the Seller in seeking to collect any past due amount owed by Buyer resulting from Buyer’s breach. Buyer agrees that any and all actions relating to any amount owed by Buyer shall be brought in a court of general jurisdiction to the rights and remedies herein set forth be entitled to all rights and remedies provided for in the Uniform Commercial Code and other applicable law as from time to time amended, and at equity.
ACCEPTANCE. Taubensee Steel & Wire Company (“Taubensee”) expressly limits acceptance to the terms of this offer. Seller will be deemed to have accepted all of the terms of this order by (i) shipping any of the goods and so notifying Taubensee (ii) beginning to perform the work requested in this order and notifying Taubensee that such work has begun, or (iii) acknowledging receipt of this order, even if the acknowledgement contains terms different from or in addition to those contained herein. Taubensee hereby objects to any term contained in a responding document sent by the Seller if the term is different from or in addition to the terms of this order. Any difference or addition will be treated as a proposal for modification of the contract. Notwithstanding any condition contained in a responding document, such a proposal will not become part of the contract unless expressly agreed to by Taubensee in writing.
RISK OF LOSS. The risk of loss or delay shall not pass from Seller to Taubensee until Taubensee receives the goods.
FORCE MAJEURE /DELIVERY: Note delivery date requested. Time is of the essence. Seller agrees that delivery will be made on or before the date specified on this order. Seller further agrees to notify Taubensee in writing within five days from the beginning of any strike, fire, flood, act of God, act of the government or any other unforeseeable occurances which may cause delay in delivery. In the event of such occurance Taubensee may, if we do so desire, terminate this order, and upon termination Taubensee shall be liable only for the contract price of goods ordered and delivered by the specified delivery date and accepted by Taubensee as satisfactory. In the event Taubensee chooses not to terminate, despite a delay in delivery, seller agrees to make delivery as soon as commercially leasable at the prices and conditions stated on this order. Taubensee reserves the right, however, to postpone for a reasonable time, shipment by the seller, and in the event of such postponement the specified “delivery date requested” shall be correspondingly extended.
NON–CONFORMING SHIPMENT OR MERCHANDISE. Taubensee shall have the right, after inspection at the specified destination, to reject all or any part of any shipment or merchandise that does not conform to this order in quality, quantity, identity, date of delivery, or otherwise, but acceptance of any non-conforming shipment or merchandise shall not impair any rights or remedies available to Taubensee in law or equity for breach of contract. Rejection of a portion of the goods shall not preclude subsequent rejection of the remainder, in whole or in part. Seller shall reimburse Taubensee for all expenses incurred in unpacking, inspecting, repacking, storing, and reshipping any goods so rejected. In addition, any merchandise that Taubensee or its customers shall find through service, inspection, use, or otherwise, to be defective in material or workmanship or not in conformity with this order may at Taubensee’s option be returned to Seller at Seller’s expense and risk for full refund, credit, or replacement as Taubensee shall determine, or held at Seller’s expense and risk for Seller’s instructions.
PRICING: All prices stated on this order are firm and are not subject to escalation. Exceptions to the prices stated on this order are to be made immediately. Otherwise the stated price shall be the agreed upon price between Taubensee and Seller.
WARRANTIES: In addition to Seller’s customary warranties, any express warranties, and any other warranties contained herein or implied by law, Seller warrants that the goods will conform to specifications, certifications of test results, drawings, samples, or other descriptions that Taubensee or Seller have furnished or specified, and will be merchantable, of high quality, and free from defects in design, material, and workmanship. If Seller knows or has reason to know the particular purpose for which Taubensee intends to use the goods, Seller warrants that such goods will be fit for such particular purpose. All warranties shall survive inspection, acceptance, use, and payment and shall be for the benefit of Taubensee and its successors, assigns, and customers. Taubensee’s extension of express or implied warranties to its successors, assigns, or customers shall not limit Seller’s warranties in any way.
QUALITY PROGRAM: We reserve the right to visit your facilities and audit or survey your quality program, or to inspect at any stage in the process of fabrication or manufacture, any goods no matter where located made to sellers or Taubensee’s special specifications.
MATERIAL AND DRAWINGS: Any material that Taubensee has furnished or may furnish Seller without charge in connection with this order shall remain Taubensee’s property subject to recall at any time. Seller agrees to keep such material fully insured for Taubensee’s benefit against loss or damage of any kind and to reimburse Taubensee for any such material that is spoiled or lost while in Seller’s possession. All blueprints, specifications, plans or designs furnished to seller by Taubensee are confidential and Seller shall not furnish them to anyone else without Taubensee’s written consent.
INFRINGEMENT: Seller warrants that the goods will not infringe any patent, copyright, trademark, trade secret, proprietary right or license. Except where a claim for infringement is based solely upon designs or specifications that Taubensee has furnished to Seller, Seller agrees to indemnify and hold harmless Taubensee and Taubensee’s customers from all costs, losses, and expenses (including reasonable attorney’s fees) incurred in connection with any claim, demand, or suit based on alleged infringement by reason of Taubensee’s purchase or use of any goods or merchandise furnished by Seller. Seller also agrees promptly to assume full responsibility for defense of any suit or proceeding that may be brought against Taubensee, its agents, or customers for any such claim of infringement. Taubensee may be represented by and actively participate through its counsel in any suit or proceeding if it desires and Seller shall pay the costs of such representation.
INDEMNIFICATION AND INSURANCE, (a) Seller agrees to indemnify, defend and hold harmless Taubensee, its employees, and agents, to the extent permitted by law, against all liabilities (including those pertaining to personal injury, property damage, or purely economical loss), losses, expenses (including reasonable attorney’s fees), and costs arising out of any claims or actions, including, but not limited to, third party complaints, alleging (i) injury or damage to persons or property caused in whole or in part by the goods covered herein; (ii) Taubensee’s failure to perform a contract for resale of the goods covered herein to the extent that failure was caused in whole or in part by Seller’s failure to perform this agreement; or, (iii) anything else that would constitute a breach of this agreement by Seller. Seller will assume the full responsibility and expenses of investigation, litigation, and settlement of any such complaints, claims or legal actions. Taubensee may be represented by and actively participate through its own counsel in any suit or proceeding if it desires, and Seller shall pay the costs of such representation.
(b) Seller agrees to obtain and maintain, at its expense, one or more policies of products liability insurance, and with a broad form vendor’s endorsement naming Taubensee as an additional insured, sufficient to cover any claims that may arise at any time concerning the goods specified in this order. All such policies shall provide that coverage thereunder shall not be terminated except upon ten days’ prior written notice to Taubensee. Seller shall furnish to Taubensee a certificate of insurance expressly showing such coverage including executed copy of the endorsement.
INSURANCE REQUIREMENTS. Seller shall at all times maintain in force public liability insurance, naming Taubensee as an additional insured, in the amount of not less than $1,000,000 combined single limit with respect to property damage and bodily injury or death. Seller shall also maintain workmen’s compensation insurance coverage on all Seller’s employees engaged in work on Taubensee’s premises in the amount required by the applicable law and motor vehicle liability insurance in the amount of at least $1,000,000 combined single limit for all Seller‘s personnel operating motor vehicles on or near Taubensee’s premises. Seller shall furnish to Taubensee certificates of insurance expressly showing such coverage prior to shipment.
COMPLIANCE WITH LAWS. Seller represents that the merchandise covered by this order was manufactured and is being priced and sold in accordance with all federal, state, and local laws, Each invoice must contain a statement that the goods referred to therein were produced in accordance with the provisions of the Fair Labor Standards Act of 1938, as amended. Seller agrees to comply with every applicable obligation imposed by the equal opportunity clause set forth in 41 C.F.R. § 60-1.4(a) and the affirmative action clauses set forth in 41 C.F.R. §§ 60-250.4,-741.4.
TAXES. Unless otherwise provided on the face hereof, Seller shall hold Taubensee harmless from the assessment or imposition of any excise, use, or other tax upon the production, sale, delivery, or use of the goods to the extent the assessments or impositions are required or not forbidden by law to be borne by Seller.
SET–OFF. Upon notice to Seller, Taubensee may deduct damages for breach of warranty or of any other provision of this Agreement and any counterclaim from the amount shown as due Seller on any invoice, even if the deduction and the invoice are unrelated to the same sale or series of sales.
INSOLVENCY OF SELLER. If Seller becomes insolvent, or if proceedings in bankruptcy, arrangement, reorganization, or for the appointment of a receiver are filed by or against Seller, or if Seller makes an assignment for the benefit of creditors, or if an attachment or execution against Seller or any of its property is not released within a period of ten days from and after such levy, then this order shall be cancelled as to any part upon which performance has not been completed, unless Taubensee, within ten days after learning of the occurrence of one of the above events, notifies Seller in writing that Taubensee elects to have this order continue to its completion.
ASSIGNMENT AND DELEGATION. Seller shall not assign any right or interest in this order or delegate any obligation owed or the performance of any obligation without Taubensee’s prior written consent. Any attempted assignment or delegation shall be wholly void and will result in the cancellation of this order unless made in conformity with this paragraph.
LIMITATION ON TAUBENSEE’S LIABILITY; STATUTE OF LIMITATIONS. In no event shall Taubensee be liable for anticipated profits or for incidental or consequential damages. Taubensee’s liability on any claim of any kind for any loss or damage in connection with this order or from the performance or breach thereof shall in no case exceed the price allocable to the goods, services, or unit thereof that gives rise to the claim. Taubensee shall not be liable for any penalties. Seller must commence any action resulting from any breach by Taubensee as to the goods delivered hereunder within one year after the cause of action has accrued.
SEVERABILITY. If a court of competent jurisdiction declares or holds invalid or unenforceable any term, clause, or provision of this Agreement, that declaration or holding shall not affect the validity and enforceability of any other term, clause, or provision contained herein.
LAW OF ILLINOIS. The laws of Illinois shall govern this transaction in all respects.
EXCLUSIVE JURISDICTION. Taubensee and Seller hereby agree to the exclusive jurisdiction of any state or Federal court located within Cook County, Illinois and not to bring suit against the other party in any other jurisdiction, with respect to any claim or cause of action arising under or relating to this order, and Taubensee and Seller each waive personal service of any and all process upon it, and consents that all services of process be made by registered mail, directed to it at its address as set forth on this order, and service so made shall be deemed to be completed when received. Taubensee and Seller also each waive any objection based on forum non conveniens and waive any objection to venue of any action instituted hereunder. Nothing in this paragraph shall affect the right of Taubensee or Seller to serve legal process in any other manner permitted by law.
FULL AND FINAL AGREEMENT. The terms set forth herein constitute the sole terms and condition of this contract between Taubensee and the seller. No other terms, conditions or understandings, whether oral or written shall be binding upon Taubensee, unless hereafter made in writing and signed by our authorized representative. We specifically object to any different terms in any document or writing prepared or furnished by the seller.
TERMINATION AT OPTION OF BUYER.
- Performance of work or supply of materials under this purchase order may be terminated by Buyer at any time at its option, in whole or in part, at time of delivery or by mailing of a written notice of termination to Seller. Buyer shall at all times have such right of termination of this purchase order.
- After receipt of notice of termination, Seller shall, unless otherwise directed by Buyer, immediately terminate all work under this purchase order and shall, unless otherwise directed by Buyer, terminate all orders and subcontracts relating to the performance of the work terminated by the notice of termination.
- Upon termination by buyer under this paragraph, Buyer shall pay to Seller, without duplication, the purchase order price for all items properly produced and shipped prior to notice of termination which have been completed in accordance with this purchase order.
- The provisions of Paragraph (c) shall not apply if this purchase order is canceled by Buyer for the default of Seller.
