Standard Terms and Conditions of Sale
Metro Industries, Inc.
Effective: September 1, 2013
1. DEFINITIONS
“Terms and Conditions” means this Standard Terms and Conditions of Sale, which may be amended from time to time, as in effect at the time an Order is acknowledged by Seller.
“Seller” means Metro Industries, Inc., a Missouri Limited Liability Corporation, as represented by duly authorized agents thereof.
“Buyer” means the legal entity purchasing Goods.
“Goods” means the products and services offered by Seller and/or purchased by Buyer, including tooling and other related charges.
“Offer” means any quote, proposal, or offer to sell Goods provided by Seller to Buyer.
“Order” means any purchase order or similar instrument issued by Buyer to Seller to purchase Goods.
2. AGREEMENT
These Terms and Conditions shall apply to all Offers made by Seller and all Orders placed by Buyer and accepted by Seller. These Terms and Conditions shall prevail over any conflicting terms and conditions affixed to Orders issued by Buyer. In such cases, Seller’s acceptance of any Order is strictly conditioned upon Buyer’s acceptance of these Terms and Conditions. Buyer shall be conclusively deemed to have accepted the same upon any of the following by Buyer, its agents, or representatives: (i) written or electronic acknowledgement or acceptance hereof, (ii) transmission to Seller, its agents, or representatives of any Order for Seller Goods, or (iii) acceptance of or payment for any Goods covered hereby. Seller’s failure to object to any provision contained in any communication from Buyer shall not be deemed a waiver of any provision hereof. Any changes in these Terms and Conditions or in any document or agreement referred to herein must be specifically agreed to in writing by Seller before being binding on either party. No order will be binding upon Seller unless and until accepted in writing by Seller. Seller may accept or reject any Order at Seller’s sole discretion.
3. OFFERS
All Offers are subject to modification or withdrawal without notice unless otherwise stated in writing by Seller. Any expiration date, time-framed validity, or similar statements included Offers are made in good faith for the convenience of Buyers and do not negate or mitigate Seller’s right to modify or withdraw Offers without notice.
4. PRICES
Unless stated otherwise in writing by Seller, all prices are stated in U.S. dollars. All invoices and charges for Goods will be at the price indicated in Seller’s written Order acknowledgement, or other mutually agreeable form of Order acceptance by Seller. In the event that acceptance prices differ from Offers to Buyer, Buyer may cancel such Order without liability so long as it gives written notice thereof to Seller within five (5) days following the date of Seller’s Order acceptance notice.
5. TOOLING AND FIXTURES
Unless Seller agrees otherwise in writing, ownership of any tooling or fixtures purchased or made by Seller for the sale of Goods to Buyer belong to the Seller, even in cases where some or all of the cost of such tooling or fixtures is paid by Buyer.
6. TAXES
All prices are exclusive of any sales, use, revenue, excise tax, value added tax (VAT), import or export duty (including brokerage fees), or other taxes, charges, fees, or duties imposed by any government authority and applicable to the transaction between the Seller and Buyer (“Taxes”). Unless otherwise agreed to in writing by Seller or required by law, Buyer shall pay all such Taxes unless Buyer provides Seller with a tax exemption certificate acceptable to the applicable taxing authority.
7. TERMS OF PAYMENT
Unless otherwise agreed to by Seller in writing, all payments are to be made in U.S. dollars. Seller reserves the right to specify and/or limit acceptable forms of payment at any time at its sole discretion. Payment terms other than payment in advance must be agreed to by Seller via written Order acknowledgments or other written form. In cases where open terms have been established in writing between Buyer and Seller (typically Net 30 days, 1% discount – 10 days), invoices shall be issued as of the date of shipment and due according to the established terms from that date. Each shipment is a separate and independent transaction and payment must be made by Buyer accordingly. Payments are considered received on the day they are received by Seller. Seller may change payment terms at any time, including requiring payment prior to delivery.
8. DELINQUENT BALANCES
Balances due on open accounts will be considered delinquent on the day following the due date stated on the invoice. Delinquent balances will be subject to a finance charge of 2% of the balance due on the day following the initial due date plus an additional 1% on the balance due for each full calendar month following the original due date. In addition to these finance charges, Buyers will be responsible for paying the full costs of collecting delinquent balances including collection agent fees, legal fees, court costs, and all other expenses associated with reasonable efforts to attain payment on amounts owed to Seller.
9. SHIPPING TERMS, TITLE, AND RISK OF LOSS
Unless otherwise agreed to by Seller in writing, all freight costs are to be paid by Buyer. Unless otherwise agreed to by Seller in writing, all sales to destinations within the U.S.A. (“Domestic Sales”) are to be shipped F.O.B. Seller’s facility in Grandview, Missouri, U.S.A or other shipping point designated by Seller (“Source”) per the Uniform Commercial Code (“UCC”), regardless of how freight costs are apportioned. All sales to destinations outside the U.S.A. (“International Sales”) are to be shipped Ex-Works per Incoterms® 2010. Title of Goods sold as either Domestic Sales or International Sales shall pass to Buyer, and Seller’s liability shall cease, when Seller places Goods covered hereby at the disposal of Buyer (or Buyer’s selected carrier as Buyer’s agent) at the Source. Seller assumes no responsibility for any losses incurred by Buyer due to delays, late deliveries, loss, breakage, or damage after having placed Goods in good condition at the disposal of Buyer or its carrier at the Source. All claims for loss or damages must be filed with the carrier by Buyer. In the absence of timely and specific shipping instructions from Buyer, or the failure of Buyer’s selected carrier to accept Goods on the acknowledged shipment date, Seller may select another carrier and service level similar to that of Buyer’s selected carrier (if any), so as to complete the Order as originally acknowledged by Seller. In such cases, Buyer will promptly accept Goods as if placed at the disposal of Buyer or its selected carrier at the Source. Buyer will be responsible for all costs incurred by Seller as a result of Buyer’s refusal of any shipment made by Seller according to the Terms and Conditions stated herein. Any non-standard or special packing or packaging requirements, requested by Buyer or required by carriers are subject to Seller approval and provided at additional cost to Buyer.
10. WARRANTY
Seller warrants that the Goods covered hereby shall be free from defects in workmanship and materials performed or provided by Seller, and shall conform to specifications referenced on Order, or other specifications accepted in writing by Seller. Seller makes no claims nor offers any warranty related to the merchantability, fitness, or suitability of any Goods for any particular purpose, use, or application, or for Buyer’s satisfaction with Goods for any reason not specified or referenced on Order. No warranty is provided for Goods supplied as or for the purpose of tooling or process evaluation, samples, or design prototypes unless otherwise agreed to in writing by Seller. The foregoing warranty does not apply to any Goods subjected to misuse, neglect, accident, modification, damage, or decay, all of which are subject to the determination of Seller at its sole discretion. Seller’s sole obligation to Buyer for Goods failing to meet the aforesaid warranty shall be, at Seller’s option, to (a) replace the nonconforming Goods, or (b) issue Buyer a credit for the purchase price of the nonconforming Goods, where (i) Seller has timely received written notice in reasonable detail of any nonconformity; (ii) after Seller ’s written authorization to do so, Buyer has returned the nonconforming Goods to Seller, freight prepaid, accompanied by Seller’s, correctly completed, standard return material authorization (“RMA”) form; and (iii) Seller has determined to its satisfaction that the Goods are nonconforming and that such nonconformity is not subject to the foregoing warranty exclusion (concerning misuse, neglect and other causes). Each return shipment must be in proper and appropriate packaging with the RMA number clearly stated on the outside of the container. Unauthorized returns, or returns that fail to comply with the foregoing requirements, will be subject to reshipment to Buyer at its sole cost and expense and all costs and risk of loss for unauthorized returns shall be borne by the Buyer. Seller’s warranty does not relieve the Buyer of the reasonable responsibility to test for Good nonconformity before installation, resale, or other use. Seller neither assumes, nor authorizes any person to assume for it, any other liability in connection with the sale, installation, or use of its Goods, and Seller makes no warranty whatsoever for Goods not sold by Seller nor for any Seller Goods purchased or acquired from any distributor, broker, or other source which has not been authorized by Seller to sell or distribute its Goods. Buyer hereby acknowledges that it has not entered into this transaction in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein.
11. LIMITATION OF LIABILITY
Seller’s aggregate liability to Buyer arising out of or relating to these Terms and Conditions and/or sale of Goods, whether for breach of contract or warranty, negligence, delays in delivery or use, or otherwise, shall be limited to the amount received by Seller from Buyer for the Goods which give rise to such liability or claims. In no event shall Seller be liable for special, consequential, incidental, or other damages of any kind, however caused and regardless of the theory on which such claims are based, whether arising from contract, tort, negligence, or otherwise, including (without limitation) damages to person or property, materials owned by Buyer, lost revenues or profits, goodwill, overhead costs, or procurement of substitute Goods, or any other damages, even if advised of the possibility of such damages. Buyer shall indemnify Seller against all claims, losses, damage, or injury arising out of or related to the use of the Goods, whether sold separately or incorporated into any of Buyer’s products or services.
12. QUANTITY VARIANCES
Unless otherwise agreed by Seller in writing, Seller may at its sole discretion satisfy its obligation with regard to any Order or Order item upon shipping any total quantity within five (5) percent of original Order quantities. Buyer is obligated to receive and pay the full amount for quantities shipped within these provisions at the Order price. Buyer must notify Seller of any claims of quantity shortages within thirty (30) days following receipt of each shipment. All claims of quantity shortages are subject to Seller’s verification and approval, and Seller reserves the right to reject any such claims at its sole discretion based on inventory, production and freight records, photographs, and other evidence.
13. ACCEPTANCE BY BUYER
Buyer shall accept or reject Goods within thirty (30) days following receipt of each shipment. In the event that Buyer fails to notify Seller in writing of rejection and the specific grounds therefore within such time period, Buyer shall be conclusively deemed to have accepted such Goods without qualification.
14. CONTINGENCIES; DELAY; FORCE MAJEURE
All shipment dates and quantities are approximate. Seller will use commercially reasonable efforts to fill all orders according to the agreed upon schedule and quantity. Delays in delivery of any one or more Goods shall not relieve Buyer of its obligation to accept and pay for remaining deliveries, regardless of the cause. Seller shall not be responsible for any failure to perform due to acts of God, war, riot, acts of terrorism, embargoes, acts of civil or military authorities, fire, flood, earthquake, accident, strike, shortages of transportation facilities, fuel, labor, or materials, or for any other cause beyond Seller’s reasonable control. In the event of any delay caused by any such contingency, the date of shipment shall, at the discretion of Seller, be deferred until such event has terminated. In the event Seller’s production is curtailed for any of the foregoing reasons so that Seller cannot make available the full amount released hereunder, Seller may allocate production deliveries to the various customers then under contract for similar goods. The allocation will be made in a commercially fair and reasonable manner at Seller’s sole discretion. When allocation has been made, Seller will notify Buyer of the estimated quantity to be made available to Buyer and the approximate time when this quantity will be made available.
15. ORDER MODIFICATIONS
Any modifications to Orders requested by Buyers are subject to Seller’s written acceptance and, when applicable, Buyer’s written acceptance of any additional costs required to effect the modification including, without limitation, labor and materials, tooling and fixtures, shipping, and/or administration and engineering costs. This provision applies to modifications including, without limitation, quantities, delivery schedules, specifications, documentation, packaging, labeling, shipping and billing addresses, freight carriers, and any other element of Order requiring any sort of action on the part of Seller, its suppliers, or agents.
16. ADDITONAL REQUIREMENTS
Acceptance of an Order does not infer upon nor obligate Seller to any additional requirements not specified by Order and documents referenced therein or otherwise agreed to in writing by Seller. This includes, without limitation, completion of surveys, disclosure of confidential information, completing documents necessary for Buyer’s compliance with government regulations not specifically required of Seller by law, corrective action reports, Buyer or third party audits or inspections, actions required by Buyer’s procedures or policies, certifications, test reports, or anything else not agreed to in writing by Seller.
17. CANCELLATIONS BY BUYER
Except as set forth herein, Buyer’s may only cancel Orders upon pre-payment to Seller of reasonable cancellation charges determined by Seller in its sole discretion, which charges shall include, but are not limited to, expenses already incurred for labor and material costs, restocking charges, storage costs, overhead, commitments made by Seller, and profit.
18. CANCELLATIONS BY SELLER
Seller reserves the right to cancel any unfilled order immediately and without notice to Buyer in the event that Buyer becomes insolvent, is adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statutes, fails to pay delinquent balances due to Seller, or in the sole judgment of Seller, is unable to timely meet its financial obligations in the normal course of business.
19. EXPORT
All licenses or other required governmental approvals shall be obtained by Buyer at its sole cost and expense. Buyer acknowledges and warrants that, as applicable, it shall comply with all United States Export Administration Regulations, the U.S. State Department’s International Traffic in Arms Regulations (ITAR), sanction regimes of the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC), export laws and regulations of the European Union (EU) and/or any of its member states. Buyer warrants that it shall not export, re-export, resell, transfer, or disclose, directly or indirectly, any Goods or technical data, or the direct product of any Goods or technical data, to any proscribed person, entity, or country, or foreign national thereof, unless properly authorized by the U.S. government and/or any other applicable or relevant government or regulatory body. Buyer shall hold Seller harmless from any liability arising from Buyer’s failure to comply with such laws, regulations and orders, or the provisions of this section and indemnify Seller for any damages resulting to Seller from a breach of this subparagraph by Buyer.
20. ASSIGNMENT
Buyer may not assign or transfer this agreement in whole or in part without the prior written approval of Seller.
21. NO WAIVER
Seller’s waiver of, deviation from, or failure to enforce or exercise any right of the provisions of these Terms and Conditions (“Waiver”) shall not constitute a continuing Waiver or consent or commit Seller to provide a Waiver in the future, except to the extent specifically set forth in writing. Any Waiver given Seller shall be null and void if Buyer has not provided a full and complete disclosure of all material facts relevant to the Waiver requested.
22. NO RULE OF STRICT CONSTRUCTION
The language used herein shall be deemed to be the language chosen by the parties hereto to express their mutual intent and shall be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted, or in favor of the party receiving a particular benefit under the agreement. No rule of strict construction will be applied against any person.
23. ARBITRATION
Disputes that arise under this agreement that cannot be settled amicably by the parties will be settled by arbitration in Jackson County, Missouri, U.S.A under the prevailing rules of the commercial conciliation and arbitration rules of the American Arbitration Association. Judgment upon the arbitration award or decision may be entered in any court of competent jurisdiction. Arbitration awards and decisions are subject to Paragraph 11, Limitation of Liability.
24. CONTROLLING LAW; VENUE & JURISDICTION; ATTORNEYS’ FEES
These Terms and Conditions of Sale shall be governed by and construed under the laws of the State of Missouri, U.S.A., without regard to the principles of conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. In the event any applicable contract or agreement is executed in more than one language version, the English language version shall control. Any and all disputes arising hereunder or with respect hereto shall be subject to the exclusive jurisdiction and venue of the state and federal courts in the State of Missouri, U.S.A., and Buyer consents to the personal and exclusive jurisdiction and venue of these courts. The prevailing party in any legal action brought by one party against the other shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses incurred thereby, including court costs and reasonable attorneys’ fees. Nothing contained in the foregoing provisions shall be construed as negating or mitigating any obligation to resolve disputes through arbitration set forth in Paragraph 24.
25. UNENFORCEABLE PROVISIONS
If any individual provision of these Terms and Conditions are held by a court of competent jurisdiction to be illegal, unenforceable or invalid, in whole or in part, for any reason, then such provisions shall be modified to the minimum extent necessary to render them valid, while to the fullest extent possible preserving the business and financial intent and impact of the original provisions and the remaining provisions shall remain unaffected.
26. ENTIRE AGREEMENT
These Terms and Conditions, and the documents and agreements referred to herein, set forth the entire agreement between the parties with regard to the subject matter hereof and thereof, except to the extent specifically set forth in writing.
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