Gibbs Wire & Steel Co., Inc. Terms and Conditions of Sale
- Complete Agreement:
Sales by Gibbs Wire & Steel Co., Inc. (. ("Gibbs") are made only upon the following terms and conditions (the "Agreement"). Any terms and conditions in your documents, including any purchase order, are objected to and shall be without force and effect and shall not be binding upon Gibbs except to the extent, if any, that such terms and conditions shall be identical to the terms and conditions set forth herein. No salesman or agent of Gibbs has any authority to change in any manner the conditions of sale and shipment described herein. Your acceptance of delivery of the materials Gibbs ships hereunder or your failure to object in writing within ten (10) days from the date of receipt of this Agreement shall constitute acceptance of this Agreement.
- Customer Material Processed by Gibbs:
If your order concerns customer material that is to be processed by Gibbs, please refer to GIBBS WIRE & STEEL COMPANY, INC. TERMS AND CONDITIONS FOR TOLL-WORK for a complete statement of Gibbs' rights and obligations.
- Credit Department Approval:
All shipments are subject to the approval of Gibbs' Credit Department.
Payment terms are stated on the face of Gibbs' Order Acknowledgment, where applicable, and Gibbs' Invoice, as well as hereunder.
- All bills are payable (in funds at par) to the address Gibbs has designated for payment on the invoice.
- In addition to the price specified (including specifically and without limitation any yielded raw material surcharge), the amount of freight charges and transportation taxes, if any, and any present or future sales, use, excise or any similar tax or governmental charge applicable to your order and to the sale and/or furnishing of the materials and/or services rendered by your order, shall be paid by you.
- All payments for the materials furnished hereunder shall be made upon the basis of materials delivered as shown by Gibbs' delivery documents and records, whether signed by you or not.
- If you fail to make payment when due, or if Gibbs at any time has any doubt as to your ability or intention to pay, we may decline to make any further shipments on this or any other order with you. The rights and remedies of Gibbs set forth herein shall not be exclusive, and Gibbs shall have all other rights and remedies at law.
- In the event of a default by you in making any payment due under this order or any other contract with or obligation to Gibbs, then, until you cure such default, Gibbs may, at its election, apply any payments from you in such proportion to your various accounts with Gibbs as it deems proper. Payments not received within thirty (30) days of shipment shall be deemed delinquent and shall bear interest at an annual rate of eighteen (18%) percent or at the maximum legal rate, if less.
- In the event of a default by you hereunder, Gibbs shall have, in addition to all other rights and remedies, the remedies of a secured party under the Uniform Commercial Code including, without limitation, the right to take possession of the materials delivered hereunder and, for that purpose, Gibbs shall have the right to enter your premises and remove the remaining materials.
- Delivery and Risk of Loss:
- Unless otherwise specified in writing by Gibbs, all deliveries shall be F.O.B. Gibbs' point of shipment. Freight shall be payable by you to the ultimate points of destination unless otherwise specified in writing to Gibbs. Gibbs will use all reasonable means to comply with any packaging, loading or bracing requests made by you. Any extra costs due to compliance with such requests may be charged to you. If no packaging, loading or bracing requests are made by you, Gibbs shall comply with the minimum requirements customarily applying to the method of transportation used for such products.
- Risk of loss shall pass to you upon Gibbs' delivery to carrier or upon tender to your agent.
- Pursuing claims with carriers for loss or damage in transit shall be your responsibility.
- Responsibility for obtaining necessary transportation permits, if any, shall be with you unless otherwise assumed by Gibbs.
- Gibbs shall not be liable for any delay in delivery due to (1) fires, floods, explosions, the elements, acts of God, labor disputes, accidents to machinery, acts of sabotage, riots, war, delays in transportation or lack of transportation facilities, restrictions imposed by federal or state legislation, failure of suppliers of Gibbs to meet delivery schedules, delay in Gibbs' Credit Department receiving information upon which approval of your order is based, or any cause, condition or contingency beyond the control of Gibbs, whether similar to those enumerated or not. In the event of any of the foregoing, Gibbs may apportion its production and all stock material among its customers in such manner as it may consider equitable. Gibbs shall not be liable for any consequential, liquidated, penal, or other damages for delay in or failure to deliver or perform, irrespective of whether claims or actions for such damages are based upon contract, tort, negligence, strict liability, warranty or otherwise.
- Warranty, Limitation of Warranty and Damages, Indemnification:
Gibbs warrants that the materials will, upon shipment, be in substantial conformity with the description on the packing list, Order Acknowledgment, where applicable, and written specification, if any, furnished by Gibbs. . THE AFORESAID WARRANTY AS TO DESCRIPTION IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.
Gibbs' responsibility under its warranty is limited as follows;
- To the repair or replacement of defective or non-conforming materials, or to the allowance of a credit for such materials.
- OTHER THAN LIABILITY FOR REPAIR, REPLACEMENT OR REFUND AS SET FORTH ABOVE, WHICH SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY, GIBBS SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, LIQUIDATED, PENAL, OR OTHER DAMAGES, AND YOU RELEASE GIBBS FROM ANY AND ALL LIABILITY, WHETHER BASED UPON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, AND YOU FURTHER AGREE TO INDEMNIFY AND SAVE GIBBS HARMLESS WITH RESPECT TO ANY CLAIM OR ACTION BROUGHT BY ANY PERSON OR ENTITY WITH RESPECT THERETO.
- You acknowledge that you alone have determined that the materials purchased by you will suitably meet the requirements of your intended use. It is your obligation to test the materials you purchase prior to processing. GIBBS WILL HAVE NO LIABILITY FOR MATERIAL YOU HAVE PROCESSED. In no event shall Gibbs bear the costs, including specifically labor costs of running and/or removing non-conforming material.
- Technical or other advice is furnished by Gibbs solely as an accommodation and shall not increase the scope of Gibbs' responsibility or liability. Gibbs shall have no liability in respect of any loss or damage caused by reliance on such advice, whether or not negligent, unless furnished by Gibbs in bad faith.
- Gibbs, without limiting the generality of the foregoing, shall in no event have any liability in respect to labor costs, downtime of any machinery or equipment, production delays or stoppages, shipping delays or cancellations, loss of business or profits, or any incidental or consequential damage or loss, whether or not similar to the foregoing. Under no circumstances shall Gibbs' maximum liability for damages exceed the contract price for the materials claimed to be defective or unsuitable.
- Gibbs' warranty shall not apply to customer material that is processed by Gibbs. GIBBS SHALL HAVE NO LIABILITY FOR CUSTOMER MATERIAL THAT GIBBS PROCESSES. See Section 2 above.
There are no warranties which extend beyond those stated above, and Gibbs' sole responsibility is as stated. Any and all representations, promises, warranties, or statement by Gibbs' salesmen or agents which differ in any way from the terms of this Section shall be given no force or effect.
- Your Responsibility on Special Orders:
Material identified as a special order must be taken by you in the time period indicated in the order acknowledgment. In addition, you are responsible for the quantity shipped by the mill to Gibbs if it is within the mill's stated shipping allowance for overage. These shipping allowances for special orders are often different than for standard stock orders and it is important that you review the overage allowance at the time of order. If you wish to cancel a special order, you are responsible for all material that cannot be canceled.
- Damages in Transit: Shipments must be inspected by you before unloading to ascertain any damage enroute. The carriers, when accepting material at Gibbs' plant, are responsible for damages in transit, and all claims for damages in transit should be made promptly by you to the carrier.
- Claims for shortages, defective materials or nonconformity to specifications will be investigated promptly provided that you give Gibbs notice of the alleged defect or nonconformity, in writing, within thirty (30) days after receipt of the materials. If the alleged defect or nonconformity to specifications is discernible from prompt inspection of the materials, advise Gibbs immediately upon receipt of the materials.
- In any event, if you do not provide Gibbs with written notice of any defect or nonconformity within thirty (30) days after delivery, such failure to notify Gibbs shall constitute an irrevocable acceptance of the materials and workmanship, a waiver, and admission that you have had full and complete opportunity to inspect the materials, an admission that the materials and workmanship fully comply with all terms and specifications, and you shall be estopped from claiming otherwise.
- No claim will be allowed except as provided above, and your remedies as provided herein and in Section 6 above are your exclusive and sole remedies.
- All changes in your order must be in writing and confirmed by Gibbs. All costs for changes will be at your expense, subject to the terms and conditions herein.
- Gibbs' failure to insist upon strict performance of any provision of this Agreement shall not constitute a waiver of that or any other provision or any of Gibbs' rights under this Agreement, nor shall it constitute a waiver by Gibbs of any subsequent default by you in the performance of this Agreement. The terms, conditions, and limitations here, and the rights of Gibbs, may be enforced at any time in whole or in part,
- You agree to pay any and all costs, expenses, and attorneys' fees, which Gibbs may incur or become liable for by reason of Gibbs enforcing or attempting to enforce the terms of this Agreement.
- This Agreement shall be construed according to the laws of the State of Connecticut.
- This Agreement shall be binding upon and inure to the benefit of the respective heirs, executors, administrators, receivers, legal representatives, successors, and assigns of the parties.
- All of the provisions of this Agreement are separate and severable. If any provision or part of any provision is held invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of such provision or any other provision of this Agreement.
- Captions have been inserted solely for convenient reference and shall not limit or affect the scope or meaning of any provision contained herein.
- All reference to "you" and "your" shall mean the buyer.