CONSOLIDATED METALS, INC.
SUPPLIER AND VENDOR TERMS AND CONDITIONS
Offer and Acceptance. These terms and conditions (“Terms”) are part of the purchase order (“Purchase Order”) provided to you (“Seller”) by Consolidated Metals, Inc. (“CMI”). The Purchase Order is an offer or counteroffer (“Offer”) by CMI to purchase the products and/or services (“Products”) described in the Purchase Order. Acceptance of the Offer by Seller is expressly made conditional on assent to these Terms and the other provisions contained in the Purchase Order. In accordance with these Terms, the Purchase Order is not a confirmation or acceptance of any offer made by Seller. To the extent Seller has made any offer, CMI expressly and unequivocally rejects the offer. CMI also objects to and rejects any additional or different terms contained in any of Seller’s quotations, acknowledgments, invoices, forms, or in any other correspondence from Seller. No such additional or different terms will be of any force or effect. These Terms and any consistent terms in the Purchase Order (together, “Agreement”) constitute the entire agreement between the parties on the subject of any purchase(s) by CMI from Seller, superseding all prior written and oral communications and negotiations. Seller may accept the Offer through either express or implied acceptance (e.g., performance or beginning work under the Order). This Offer expires 30 calendar days after its date or upon prior written notification by CMI to Seller that the Offer is withdrawn.
Purchase Price. The purchase price specified in the Purchase Order will be inclusive of all charges to CMI, except as otherwise agreed to in writing by CMI. CMI will not be liable for any federal, state or local taxes, tariffs, duties, customs or assessments in connection with the sale, purchase, transportation, use, or possession of the Products ordered hereunder.
Packing. All Products will be suitably packed, marked with CMI’s Purchase Order number and shipped in accordance with CMI’s shipping instructions and otherwise in accordance with the requirements of common carriers. Packing slips must be included with all shipments showing order number, part number, and quantity; and the last copy must state “Order Completed.” The order number must be shown on each item, packing slip, and invoice. No charge will be assessed to CMI for boxing, packing, crating, or carting unless separately itemized on the face hereof.
Shipping and Billing. Time is of the essence. Seller will deliver the Products in the quantities and within the time, in accordance with the specifications, drawings or approved samples, and at the prices in the Purchase Order. Time of shipment and routing instructions specified by CMI must be strictly adhered to, and Seller agrees to pay any added costs due to any delays. If delivery is not made at the time specified, CMI may immediately cancel a Purchase Order in whole or in part. Items received in advance of CMI’s delivery schedule may, at CMI’s option, be returned at Seller’s expense or be accepted and payment withheld until after the scheduled delivery date. If Seller fails to meet the delivery requirements set forth in this Purchase Order, and a more expeditious method of transportation for the Product exists, Seller will use the more expeditious method of transportation at Seller’s own expense. Unless provided otherwise in the Purchase Order, the domestic shipping terms for all Products purchased hereunder are Free on Board (“FOB”) as that term is defined in Incoterms 2010, and the international shipping terms for all Products purchased hereunder are Delivered Duty Paid as the term is defined in Incoterms 2010. For the avoidance of all doubt, in the event of a conflict between these Terms and the Purchase Order regarding shipping terms, the Purchase Order governs. Regardless of shipping terms, all risk that the ordered Products may be lost, damaged or delayed in transit will be upon Seller until conforming Products have been actually received, inspected, and accepted by CMI. Seller will be liable for any damages arising during shipment, whether detectable upon delivery and inspection or latent in nature. Additional expenses, charges or claims incurred as a result of deviation from the specified route, noncompliance with other shipping instructions, or improper description of the shipment in shipping documents will be the responsibility of Seller. Failure of CMI to insist upon strict performance will not constitute a waiver of any of the provisions of any Purchase Order or waiver of any default. Seller will not unreasonably anticipate delivery by purchasing materials or manufacturing quantities in excess of what is reasonably required to meet CMI’s delivery schedule.
Acceptance and Rejection of Products. Seller acknowledges that CMI may not perform incoming inspections of the Products, and Seller waives any right to require such inspections. CMI reserves to itself the following rights without prejudice to any other remedies or rights, whether in law, equity, or otherwise: (i) to reject anything furnished hereunder that does not meet CMI’s requirements with respect to conformity to description/specifications, quality, workmanship, condition, quantity, or time and place of delivery; (ii) to accept without prejudice any part of a shipment or services that is acceptable and to reject the remaining portion; (iii) to hold, store, or return, in each case at the expense of Seller, any Products or material rejected for such cause; (iv) to require Seller to immediately replace and deliver any Products rejected without any increase in the purchase price, and Seller will pay all freight charges on those replacement shipments; or (v) to require Seller to immediately correct or replace any Products rejected hereunder without any increase in the purchase price. CMI will have the right to reject Products or services provided hereunder for up to one (1) year from delivery. Payment for any non-conforming Products will not constitute acceptance of them, or limit or impair CMI’s right to assert any legal or equitable remedy. CMI will not be required to purchase any Products in excess of the amount set forth on the Purchase Order; any additional amounts will be held by CMI on consignment and may either be rejected or purchased by CMI when used pursuant to the terms set forth in the Agreement.
Setoff and Cross-Setoff. In addition to any right of setoff or recoupment provided by law, CMI will be entitled to set off any amount owing at any time from Seller (or any of Seller’s affiliates) to CMI (or any of CMI’s affiliates), whether under the Agreement or otherwise, against any amount payable at any time by CMI (or any of CMI’s affiliates) to Seller (or any of Seller’s affiliates). Seller may not set off any amount due from CMI or CMI’s affiliates, whether under the Agreement or otherwise, against any amount due to CMI hereunder without CMI’s prior written consent.
Warranties and Representations. Seller expressly warrants/guarantees that all Products covered by the Purchase Order will: (i) conform to the specifications, drawings, samples or other descriptions furnished or specified by CMI; (ii) be merchantable, and of good material and workmanship (latent or otherwise); (iii) be free from defect; (iv) not infringe on the proprietary rights of third parties, (v) be new, not used, refurbished, or reconstituted; and (vi) be free and clear of all liens and encumbrances. Seller further acknowledges that Seller knows CMI’s intended use and warrants/guarantees that all Products covered by this Purchase Order were selected, designed, manufactured, and assembled by Seller based on CMI’s stated use and will be fit and sufficient for the particular purposes intended by CMI. Seller expressly represents and warrants that the requirements of all applicable federal, state and local safety standards, including the Occupational Safety and Health Act of 1971, as amended from time to time, and other laws, rules, regulations and ordinances have been and will be complied with in connection with the performance of work and the furnishing of Products under this Purchase Order, and that any Products or materials sold by this Purchase Order will conform to such standards, laws, rules, regulations and ordinances. The foregoing warranties will survive inspection, delivery, and payment and will run in favor of CMI, its successors and assigns and its customers, whether direct or indirect. The warranty period will be the maximum allowed by applicable law. Upon request, Seller will provide CMI a written certification of its compliance with this requirement.
If any such Products are found to be unsatisfactory, defective, inferior in quality, or not in conformance with CMI’s specifications or any other requirements hereof (including Seller’s warranties), CMI may, at its option and in addition to its other remedies, retain such Products at an adjusted price, hold such Products at Seller’s risk and expense pending Seller’s specific instructions, or return them to Seller for replacement, credit, or refund, as CMI directs. In that event, CMI will also have the right to cancel any unshipped portions of the affected order and any related order. CMI will be reimbursed by Seller for all of its costs and expenses in connection with the storage, handling, packing and/or transporting of any such defective or otherwise nonconforming Products, and Seller assumes all risk of loss or damage in transit to Products returned by CMI pursuant hereto.
Indemnification. Seller will indemnify, defend, and hold harmless CMI and CMI’s successors, assigns, customers and end users of its Products (whether direct or indirect) against any expenses, damages, losses, or liabilities (including attorneys’ fees and other costs of defending any action) of any kind whatsoever which they, or any of them, may sustain or incur as a result of any claim of negligence, breach of warranty, personal injury or death, patent or trademark infringement, strict liability in tort or based on any other theory of law in connection with the Products furnished by Seller hereunder, or as a result of any claim that the Products furnished by Seller fail to conform to or comply with any federal, state or local laws, regulations or standards, or based upon or arising out of any construction or installation, services, or facilities furnished by Seller under or in connection with any Purchase Order.
Termination. CMI may immediately terminate a Purchase Order without further liability if: (i) Seller ceases to conduct its operations in the normal course of business, (ii) any proceeding under bankruptcy laws is brought by or against the Seller, (iii) a receiver is appointed or applied for on behalf of Seller, (iv) an assignment for the benefit of creditors is made by Seller, or (v) Seller breaches any of the terms or conditions of this Purchase Order. Any such termination will not affect Products previously delivered pursuant to the terms of this Purchase Order. CMI may cancel any Purchase Order with at least two (2) weeks’ advance written notice from the date of scheduled delivery.
CMI’s Remedies. Seller will be responsible for any and all losses, liabilities, damages and expenses, including incidental and consequential damages, and including attorneys’ fees and other costs of prosecuting an action for breach, which CMI may sustain or incur as a result of any breach of the Agreement.
Seller’s Remedies. UNDER NO CIRCUMSTANCES OR THEORIES (INCLUDING BREACH OF CONTRACT OR NEGLIGENCE) WILL CMI BE LIABLE TO SELLER FOR ANY EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT OR SIMILAR DAMAGES WHATSOEVER (INCLUDING LOST PROFITS, BUSINESS OR GOODWILL) ARISING OUT OF, CONNECTED TO, OR IN ANYWAY RELATED TO THESE TERMS, THE PURCHASE ORDER, THE AGREEMENT, OR THE PRODUCTS, WITHOUT REGARD TO WHETHER CMI KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT OR UNDER ANY CIRCUMSTANCES OR THEORIES (INCLUDING BREACH OF CONTRACT OR NEGLIGENCE) SHALL CMI’S TOTAL LIABILITY TO SELLER FOR ANY LOSSES, DAMAGES, COSTS, EXPENSES, OR OTHER AMOUNTS EXCEED THE PURCHASE PRICE CONTAINED IN THE PURCHASE ORDER.
Remedies Cumulative; No Waiver. CMI’s remedies relating hereto shall be cumulative and in addition to any other remedies provided herein or by law or in equity. No delay by CMI in the enforcement of any provision of this Purchase Order shall constitute a waiver thereof, and no waiver thereof shall constitute a waiver of any other provision.
Applicable Law. Any dispute arising out of, connected to, or in any way related to these terms, the Purchase Order, the Agreement, or the Products, shall be governed and construed in accordance with the laws of the state of Florida, without regard to principles of conflicts of laws. The rights and obligations of the parties hereunder will not be governed by the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
Jurisdiction and Venue. Any dispute arising out of, connected to, or in any way related to these terms, the Purchase Order, the Agreement, or the Products shall be litigated in a court located in the state of Florida, except that actions to enforce any order or judgment may be brought in another appropriate forum. The parties hereby waive any objection to personal jurisdiction in Florida courts regarding such disputes.
Notwithstanding the above, the parties recognize that a breach of this Agreement by Seller may result in irreparable harm to CMI. In order to prevent a breach, threatened breach, or continued breach or to reduce the impact of a breach, CMI has the right to obtain preliminary and permanent injunctive relief in any court of competent jurisdiction. Such injunctive relief will be in addition to all other rights and remedies available at law or in equity.
Waiver of Jury Trial. SELLER AND CMI WAIVE ANY RIGHT TO A JURY TRIAL IN AND WITH RESPECT TO ANY DISPUTE OR OTHER MATTER WHATSOEVER ARISING OUT OF, CONNECTED TO, OR IN ANY WAY RELATED TO THESE TERMS, THE PURCHASE ORDER, THE AGREEMENT, OR THE PRODUCTS.
Fair Labor Standards Certificate. Where applicable, Seller hereby certifies that all Products furnished hereunder will have been produced in compliance with all applicable requirements of the Fair Labor Standards Act of 1938, as amended, including under Sections 6, 7 and 12, regulations and orders of the Administrator of the Wage and Hour Division, including under Section 14 thereof, and in accordance with all applicable state and federal laws and regulations governing general conditions for labor employed in the production of such Products.
Insurance. Seller will maintain the following insurance coverage with carriers acceptable to CMI: (i) workers compensation, statutory limits for the states in which the contract is to be performed, (ii) employer’s liability (including bodily injury), $500,000 each occurrence, (iii) commercial general liability (premises, operations, independent contractors, products, personal/business injury), $1,000,000 each occurrence, (iv) automobile liability (owned, non-owned and hired vehicles), $1,000,000 each occurrence. Seller will furnish CMI with a certificate showing compliance with these insurance requirements upon request.
Force Majeure. Seller will not be liable for any reasonable delay or default in furnishing Products hereunder and CMI shall not be liable for failure to perform any of its obligations hereunder, to the extent that such delays or defaults on the part of the Seller or such failure on the part of CMI, are due to causes beyond their reasonable control (and not due to labor problems, or Seller’s negligence or financial difficulties) including any act of God, fire, flood, storm, hurricane, tornado, national emergency or war, government act or regulation, provided that either party has given the other prompt notice of the commencement of the occurrence that caused the failure and shall continue to tender partial performance of the Purchase Order if possible. Notwithstanding the foregoing, in the event of any delay in delivery by Seller caused by a force majeure event will, in CMI’s opinion, cause a delay in delivery to CMI’s customers, CMI shall have the option to terminate all or a portion of this Purchase Order in order to obtain the Products elsewhere, without liability to Seller on account thereof. Unprofitability or an increase in the cost or decrease in the availability of raw materials, components, fuel, freight or supplies is not a force majeure event.
Allocation of Limited Supply. In the event of a supply shortage or upon receipt of information suggesting a supply shortage may be likely, Seller shall promptly notify CMI in writing, detailing the cause of the shortage, the estimated impact of the shortage on delivery dates, and Seller’s efforts to mitigate CMI’s damages. Regardless of whether the shortage was unforeseeable or unavoidable, Seller will allocate any limited supply of the Products covered by the Agreement to the fulfillment of its obligations under the Agreement before allocating any of such supply to use in its own operations. In allocating supply among Seller’s customers, Seller shall not allocate supply in a manner more favorable to any of Seller’s other customers than to CMI.
Relationship of the Parties. Nothing herein will be construed to create a partnership, joint venture, agency, or employment relationship. Neither party has nor will have any power to bind the other, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party.
Non-Assignability. Seller will not assign or sublet the work to be done hereunder without the prior written consent of CMI, but this provision will not restrict Seller in the procurement of component parts or materials.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to, or in the event they are unable the court may, modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Updates. THESE TERMS MAY BE MODIFIED AMENDED AND UPDATED FROM TIME TO TIME AT THE DISCRETION OF CMI UPON WRITTEN NOTICE TO SELLER.
Last Updated October 2021
DOCPROPERTY “CUS_DocIDChunk0” 4822-7420-7486.4
DOCPROPERTY “CUS_DocIDChunk0” 4822-7420-7486.4
DOCPROPERTY “CUS_DocIDChunk0” 4822-7420-7486.4