TERMS AND CONDITIONS OF SALE
Effective November 2023
1. SELLER’S TERMS AND CONDITIONS. All sales by Universal Steel America, Inc., Houston Division and/or Chicago Division (“Seller”) are subject to all of the terms and conditions contained herein and upon no other terms and condition Seller’s acceptance of Buyer’s order is expressly made conditional upon Buyer’s consent to all of Seller’s terms, and Seller objects to any terms or conditions at variance with, different from or additional to the terms set forth herein, including but not limited to any terms set forth on any purchase orders issued by Buyer at any time, unless such terms are set forth in a writing signed by a corporate officer of Seller. Any amendment to, or any waiver, modification or deletion of, any of Seller’s terms is deemed material and is hereby rejected. and shall be ineffective unless such amendment, waiver, modification or deletion is accepted in a writing signed by a corporate officer of Seller. Seller is unwilling to proceed without Buyer’s acceptance of these terms. BUYER AND SELLER AGREE THAT THE TERMS AND CONDITIONS PRINTED HEREIN ARE ACCEPTED IN GOOD FAITH BY BOTH PARTIES AS THE CONTROLLING AND FINAL TERMS AND CONDITIONS.
2. BUYER’S ACCEPTANCE OF SELLER’S TERMS. Buyer’s acceptance of Seller’s terms shall be conclusively presumed by: (a) Buyer’s submission of a credit application to Seller; (b) Buyer’s receipt of Seller’s Sales Acknowledgment without written objection sent to Seller within ten (10) days after receipt of such Sales Acknowledgement; (c) Buyer’s execution of any other document containing these terms and conditions of sale; or (d) Buyer’s acceptance of delivery of any products ordered from Seller’s acceptance of Buyer’s order or commencement of performance shall not constitute acceptance of any of Buyer’s terms and conditions.
3. QUOTATIONS AND SALES FOB ORIGIN, FREIGHT COLLECT. All quotations and sales are FOB origin, Freight Collect, unless otherwise specified on the face thereof. Seller’s responsibility ceases upon delivery to carrier or upon tender to Buyer’ agent, whichever occurs first, and title shall transfer and risk of lost products shall be borne by Buyer at that point. Buyer shall be solely responsible for filing and pursuing any claims with carriers for loss or damage in transit. Seller reserves the right to change all quotations at any time. Subject to the provisions of Section 4 below with regard to prices, Seller shall be bound only upon issuance of an order acknowledgment or shipment and acceptance of all or any part of the products.
4. PRICES. The purchase price of any products sold shall be as stated on the applicable Seller order acknowledgment or accepted purchase order; provided, however, that Seller may upon prior notice to Buyer assess a surcharge on the sale of any products and/or without prior notice choose to pass along any price increase in Seller’s cost of the subject products and/or services or surcharge imposed on Seller by its supplier(s), including, but not limited to, any such surcharge predicated upon an increase in the cost of raw materials or energy, all after the date of the applicable Seller order acknowledgment or accepted purchase order. Such a surcharge by Seller or by Seller’s supplier(s), as well as any price increase, which is passed along will result, respectively, in an increase in price effective for any products and/or services scheduled for shipment beginning immediately on either the date established by Seller as the effective date of such surcharge as noted in the notice provided or on the date such increase in Seller’s cost of the subject products and/or services or surcharge is imposed on Seller by its supplier(s). Any price change resulting from a pass along of a surcharge or an increase of Seller’s cost may, as previously noted in this Section 4, be made effective by Seller without prior notice to Buyer and may be further adjusted by Seller periodically to reflect additional changes in costs to Seller. In any case, Seller shall be bound as to purchase price only upon shipment and/or acceptance by Buyer of all or any part of the products and/or services ordered. All prices proposed by Seller to Buyer are confidential information of Seller, and Buyer shall take all reasonable actions to keep such prices c Disclosure of Seller’s prices to any third party for any reason whatsoever (other than as required by law or directly in connection with purchase of products hereunder) is expressly prohibited.
5. TAXES. Unless otherwise indicated herein, Seller’s prices do not include any taxes due or payable on account of the transactions between Buyer and Seller, and all such taxes shall be paid by Buy All taxes of any kind levied by any federal, state, municipal, foreign, or other governmental authority which Seller is required to collect or pay with respect to the production, sale, purchase, delivery, storage, processing, use, consumption, or shipment of goods sold hereunder shall be the responsibility of Buyer. This also includes, in the case of export orders, responsibilities for any tariffs, duties or the management of any special import restrictions or other customs formalities associated with the importation of the products by Buyer. Buyer agrees to pay all such taxes and further agrees to reimburse Seller for any such payments made by Seller. Taxes may be excused after receipt by Seller of a valid Tax Exemption Certificate as required by applicable law.
6. PAYMENT. Buyer agrees to pay for all products purchased from Seller “Net Thirty Days.” If payment is not made when due, Buyer agrees to pay a service charge on the amount past due at the rate of 1 ½% per month (18% per annum) or the maximum lawful rate, whichever is less. If Buyer fails to make payment in full or in part or refuses to pay any applicable price increases or surcharges, Seller shall have the right to (i) immediately suspend performance and cancel the unfinished portion of the order, or (ii) proceed with the order, given an extension of time for performance as is necessitated by the temporary suspension.
7. DELIVERY. Any and all delivery dates given by Seller prior to shipment constitute estimates only. Seller will make a good faith effort to complete delivery of the products as indicated by Seller in writing, but Seller assumes no responsibility or liability and Seller will not accept any back charge for losses or damages due to delay or inability to deliver. Buyer represents, warrants and agrees that any employee or agent of Buyer signing any delivery document provided by Seller is and shall be deemed fully authorized on behalf of the Buyer. ACCEPTANCE OF PRODUCTS BY BUYER SHALL CONSTITUTE A WAIVER BY BUYER OF ANY CLAIM FOR DAMAGES ON ACCOUNT OF DELIVERY DELAY.
8. INSPECTION. Products must be examined by Buyer immediately upon receipt to determine correctness of shipment as to quantity, size, length, and condition. Buyer must not cut, fabricate or otherwise use products without such examination. Any discrepancy should immediately be noted and information relayed to Seller.
9. TOLERANCES AND INSPECTIONS. All products shall be subject to tolerances and variations consistent with usual trade practices regarding dimensions, straightness, section, composition and mechanical properties and normal variations in surface and internal conditions and quality and shall also be subject to deviations from tolerances and variations consistent with practical testing and inspection methods.
10. DELAY Seller shall not be responsible for cancellation or delay in delivery or performance resulting, in whole or in part, directly or indirectly, from causes beyond its reasonable control, including, but not limited to acts of God, acts of Buyer, strikes or other labor disturbances regardless of whether or not Seller is capable of settling such strike or disturbance, mill conditions, temporary or permanent mill closures, equipment failure, inability to obtain power, fuel, material or parts, government action, war, acts of terrorism, riot, civil unrest, delays in transportation, repairs to equipment, epidemics, pandemics or quarantine, floods, fires, severe weather conditions, natural disasters, accidents, or other contingency the non-occurrence of which was a basic assumption on which the purchase order was made.
11. WILL CALL. Will Calls will be invoiced at time of PO stated due date or at the end of every month regardless of status of pick-up, and Buyer agrees to pay within the established terms from this invoice date.
12. VARIATION IN PRODUCTS. All products sold by Seller are subject to normal variations in weight, color, size, quantities, et, as are standard in the industry.
13. STORAGE FEES. If Will Call or FOB orders are not picked up within seven (7) days after Buyer has been notified by Seller that the order is ready, Seller at its discretion may elect to ship products at Buyer’s expense or to add reasonable storage fees, and Buyer agrees to pay the same.
14. SHORTAGES AND/OR DEFECTIVE OR DAMAGED PRODUCTS. Any claim for alleged shortages and/or defects or damage to products received by Buyer from Seller must be reported by Buyer to Seller in writing within fifteen (15) days of receipt of the products. Such notification must also provide the reasons for the claim . After such fifteen (15) day period, Buyer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Buyer shall not have any right to reject the products for any reason or to revoke acceptance. Buyer hereby agrees that such fifteen (15) day period is a reasonable amount of time for such inspection and revocation SELLER MUST BE GIVEN AN OPPORTUNITY TO INVESTIGATE THE CLAIM BEFORE BUYER DISPOSES OF THE PRODUCTS.
15. CANCELLATION AND RETURNS. Buyer may not modify or cancel any order for products after receipt by Seller, or return any products, without Seller’s express prior written consent. Any cancellation authorized by Seller shall be subject to a cancellation charge of twenty percent (20%) of the sales order amount. The amount of credit, if any, allowed to Buyer for returned products shall be at the sole discretion of Sell Used products, processed material or specially manufactured materials may not, under any circumstances, be cancelled by Buyer. In the event Buyer modifies or cancels any order without Seller’s prior written consent, Seller shall be entitled to recover any and all damages suffered by Seller.
16. LIMITED WARRANTY. Seller warrants only that the products will conform to their description as herein stated, subject to tolerances and variations described above.
UNIVERSAL STEEL AMERICA INC. MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER ACCEPTS NO RESPONSIBILITY, RISK OR LIABILITY TO BUYER OR OTHERS CONCERNING, RELATING TO OR ARISING OUT OF THE PERFORMANCE, NONPERFORMANCE, FAILURE, EFFICACY, LENGTH OF LIFE OF OR ANY DEFECT IN THE WHOLE OR ANY PART OR PARTS OF ANY PRODUCT OR PRODUCTS MANUFACTURED OR FABRICATED FROM OR INCORPORATING OR OTHERWISE USING THE PRODUCTS SOLD HEREUNDER.
17. LEGAL ACTION. All actions filed by Buyer against Seller arising out of or related to this transaction, whether based on contract, tort or any other legal theory of recovery, must be commenced within the applicable statutory period, but in no event more than one (1) year from the date of Seller’s invoice.
18. BUYER’S EXCLUSIVE REMEDY/SELLER’S LIMIT OF LIABILITY. BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ABSOLUTE LIMIT OF LIABILITY IN CONNECTION WITH ANY LAWSUIT, CLAIM OR CAUSE WHATSOEVER DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF THIS TRANSACTION, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY OF RECOVERY, SHALL IN ALL CASES BE STRICTLY LIMITED, AT SELLER’S SOLE OPTION, TO EITHER: (a) REIMBURSING BUYER FOR BUYER’S ACTUAL DIRECT DAMAGES UP TO THE AMOUNT OF THE PURCHASE PRICE OF THE PRODUCTS PURCHASED IN SUCH TRANSACTION; OR (b) REPLACING ANY ALLEGED NONCONFORMING PRODUCTS AT THE ORIGINAL POINT OF DELIVERY. AS A CONDITION PRECEDENT TO SELLER’S OBLIGATION TO REIMBURSE THE PURCHASE PRICE OR REPLACE THE PRODUCTS, BUYER MUST ASSIST SELLER IN ALL RESPECTS IN ITS INVESTIGATION OF THE BASIS AND LEGITIMACY OF ANY SUCH CLAIMS. BUYER ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH HEREIN ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES EVEN IF SUCH REMEDIES FAIL IN THEIR ESSENTIAL PURPOSE FOR ANY REASON WHATSOEVER. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES TO BUYER OR ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO ANY DOWNTIME, LOST PROFITS OR LOST SALES, AND ALL SUCH DAMAGES ARE HEREBY DISCLAIMED.
19. HAZARDOUS WARNING LABEL. Steel products under normal conditions do not pose a health problem. However, fumes or particles may be generated when welding, burning, grinding or similar operations are perform
20. HAZARDOUS ACTIVITY Unless otherwise agreed in writing by a corporate officer of Seller, products sold hereunder are not intended for use in connection with any hazardous activity or any other critical application where failure of a single component could cause substantial harm to persons or property. If so used, Seller disclaims all liability for any damage, contamination or other injury and Buyer shall defend, indemnify and hold Seller harmless from such liability, whether as a result of breach of contract, warranty, tort (including negligence) or any other legal theory of recovery.
21. IMPROPER USE AND INDEMNITY. To the fullest extent permitted by law, Buyer shall defend, indemnify and hold Seller its officers, directors, agents and employees harmless from any claim, liability, damages, lawsuits, or proceedings of any kind, (including attorney’s fees and costs), whether for personal injury, property damage or other, brought, threatened or incurred by Buyer, Buyer’s employees, or any other person, arising out of improper selection, improper application or other misuse of products purchased by Buyer from Seller, or based on any claim, in whole or in part, that the products as fabricated or manufactured by Seller in accordance with drawings, specifications or other information provided by Buyer fail to (i) be adequate for a particular purpose, (ii) comply with any product liability law, rule or regulation pertaining thereto and/or (iii) be adequate for any use to which the products are put after shipment by Seller to Buyer.
22. PATENT INFRINGEMENT. If any product is furnished to Buyer’s specifications, Buyer shall defend, indemnify and hold harmless Seller and its officers, directors, employees, agents, shareholders, affiliated companies, and their respective successors and assigns from or against any and all claims, liabilities, fines, penalties, fees, costs and expenses, including, without limitation, reasonable attorney’s fees and other litigation costs, resulting from or in connection with any claim of patent infringement related to the processing of such product.
23. EXPORT LAWS. Seller’s obligations are subject to the export administration and control laws and regulations of the U.S. Governm Buyer shall comply fully with such laws and regulations in the export, resale or other disposition of the Products. Buyer confirms that it is not a resident or citizen of any country embargoed by the U.S. A list of embargoed countries is available at the official website of the US Bureau of Export Administration at http://www.bxa.doc.gov.
24. CREDIT APPROVAL. The performance of any work and all shipments shall be subject to the approval of Seller’s Credit Departm Seller may, at its discretion, suspend performance, modify payment terms, or cancel any order if, in Seller’s opinion, the credit of Buyer becomes impaired, until such time as Seller has received full payment, including any general price increases or surcharges, or satisfactory security for deliveries made and is satisfied as to Buyer's credit for future deliveries, Seller reserves the right, by written notice, to cancel any order, reevaluate payment terms, or require full or partial payment or adequate assurance of performance from Buyer without liability to Seller in the event of a material adverse change to the Buyer's financial condition.
25. SOLVENCY. Buyer hereby represents and warrants to Seller that Buyer is solvent (on a balance sheet basis) and has the unrestricted ability to pay its debts in the ordinary course of business as and when such debts are due and pay Buyer also acknowledges and agrees that each purchase order or request from Buyer to Seller shall constitute a written reaffirmation of Buyer’s representation of solvency as of the date of Buyer’s request, which representation shall be deemed to grant to Seller the maximum right of reclamation available at law or in equity under either the Uniform Commercial Code (“UCC”) or any other applicable state law, or in any bankruptcy or insolvency proceeding.
26. PURCHASE MONEY SECURITY INTEREST (“PMSI”). In accordance with the UCC, Buyer hereby grants, and Seller hereby retains, a PMSI in all products sold by Seller to Buyer, along with any products into which such goods are converted or included by Buyer and the proceeds of sale or other transfer by Buyer of any and all said products, until such time as Seller is fully paid all amounts owing by Buyer for such goods, 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.
27. SET OFF. Seller is authorized to apply any sums now or hereafter owed to Buyer or any entity affiliated with Buyer toward the payment of any monies due Seller hereund
28. ACCORD AND SATISFACTION. Checks or payments, whether full or partial, received from or for the account of Buyer, regardless of writings, legends, or notations upon such checks or payments, and regardless of other writings, statements, or documents, shall be applied by Seller against the amount owed by Buyer with full reservation of all Seller’s rights and without an accord and satisfaction of Buyer’s liability.
29. GOVERNING LAW. All sales by, or transactions involving, Universal Steel America, Houston Division, and any matters relating thereto, shall be governed in all respects by the laws of the State of Texas, without reference to its conflict of laws rules, and the laws of the State of Texas shall be applicable to all disputes arising between the parties and the Terms and Conditions herein with regard thereto. All sales by, or transactions involving, Universal Steel America, Chicago Division, and any matters relating thereto, shall be governed in all respects by the laws of the State of Illinois, without reference to its conflict of laws rules, and the laws of the State of Illinois shall be applicable to all disputes arising between the parties and the Terms and Conditions herein with regard thereto. Buyer agrees and acknowledges that venue for all matters relating to either Division shall be in any court of competent jurisdiction located in Harris County, BUYER WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING FROM THIS TRANSACTION. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this transaction.
30. ATTORNEY’S FEES. In the event that Seller institutes a legal proceeding against Buyer to collect any monies due Seller hereunder, or if Seller successfully defends any lawsuit instituted by Buyer, whether based on contract, tort or any another legal theory of recovery, then Seller shall be entitled to recover its costs and expenses, including reasonable attorney’s fees, from Buyer.
31. SEVERABILITY. If any term or condition herein, or the application thereof to any person or circumstance, shall be deemed to be invalid or unenforceable, the remainder of these terms shall not be affected thereby, and all such terms, covenants or conditions shall be valid and shall be enforced to the fullest extent permitted by law.
32. NON-WAIVER BY SELLER. Any waiver of any term, provision or other condition by Seller, whether by conduct or otherwise, shall not be construed as a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition her
33. ENTIRE CONTRACT. These terms and conditions constitute the entire understanding between the parties with respect to the terms governing the subject transaction and supersede all prior negotiations, discussions and preliminary agreements, if any. Except for representations set forth herein, neither party has relied on any promises or representations made by the other or any third party as an inducement to enter into the subject trans
34. ANTI-CORRUPTION LAWS. Buyer agrees that in connection with this transaction, Buyer shall comply with all applicable anti-corruption laws, including but not limited to the Foreign Corrupt Practices Act of 1977 (15 U.S.C. Sections 78dd-l, et seq). Seller may terminate any order if it has a good faith belief that Buyer has violated, intends to violate, or has caused a violation of any applicable anti-corruption laws.
35. ASSIGNMENT OR DELEGATION. Buyer shall not assign or delegate any or all of its duties or rights hereunder without the prior written consent of Seller.
36. NO JOINT VENTURE. Seller and Buyer are independent parties and nothing in the terms and conditions herein, accepted purchase order or order acknowledgment shall make either party agent, partner, joint venturer, or legal representative of the other.
37. MODIFICATION. 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.