CONSOLIDATED METALS, INC.
STANDARD TERMS AND CONDITIONS
These Terms are part of the quote provided to you by CMI (the “Quote”) for the products of CMI that are set forth in the Quote (the “Product”). The Buyer of the Product is referred to in these Terms as “you” and “your“.
1. The Quote may have been provided by CMI by email or any other method selected by CMI.
2. You may accept the Quote by any method acceptable to CMI (which may include an affirmative response to the Quote by email). CMI may, but is not required to, provide a confirmation of your acceptance (a “Confirmation”).
3. The Quote is also made upon the technical specifications, if any, for the Product that CMI has on file for you, or, if included in the Quote or a Confirmation, as set out in the Quote or such Confirmation (in any such event, the “Specifications”).
4. If you present a purchase order or other document (in either event, a “purchase order”) that alters the terms of the Quote in any manner, such purchase order shall not be binding upon CMI unless and until it has been expressly accepted by CMI in writing (which may include by email). CMI may accept or reject any such purchase order, in CMI’s sole discretion. Any such purchase order shall in all events be deemed to have been made pursuant to the Quote and shall be subject to these Terms, including any Specifications, notwithstanding any terms of the purchase order to the contrary, with the only exception being any changes to the pricing, shipment, delivery or payment terms in the Quote that are expressly set forth in the purchase order. All sales of the Product are made and accepted solely and exclusively upon these Terms, including any Specifications, and any purchase order or other documentation you provide to CMI are subject to Section 21 of these Terms.
5. Your purchase of the Product becomes irrevocable by you upon your acceptance of the Quote or CMI’s acceptance of any purchase order as provided in Section 4 above, as the case may be (in either case, an “Accepted Order”). Your acceptance of the Product shall also in all events constitute your acceptance of the Accepted Order, these Terms and any Specifications.
6. For blanket, consignment, stock and release, and any other purchase orders that allow you to have multiple delivery dates over a period of time, CMI may, at its sole election, ship the Product to you at sixty (60) days from the date of production or the due date, (to the extent the purchase order provides a due date), whichever is later. In this event, CMI will add freight, if not previously included, and will invoice you for the Product.
7. Unless otherwise expressly provided in the Accepted Order, CMI shall select the carrier or carriers for the shipment of the Product to you. If you select the carrier, the Product shall be made available to you FOB the plant of CMI. CMI shall in no event be liable or responsible for any acts or omissions of the carrier for the Product, (the “carrier”), whether the carrier was selected by you or CMI.
8. You shall pay all sales taxes and other taxes payable on the sale of the Product to you by CMI.
9. Unless otherwise expressly provided in the Accepted Order, title to, and all risk of loss of, the Product passes to you upon the tender of the Product to the carrier. You bear all risk of loss or damage to the Product from and after that time, so you should insure the Product at tender to the carrier and during shipment.
10. The purchase price for the Product and all related costs, including freight, shipment, insurance and sales taxes, shall be payable as provided in the Accepted Order, without set off or deduction for any reason. If any payment is not made when due or is not able to be collected by CMI for whatever reason, interest will accrue on the payment as provided in Section 15 below.
11. CMI may withhold pick up, shipment or delivery of the Product until the total amount payable by you for the Product prior to that time has been paid and collected in full or if you are in default under any other quote or agreement with CMI. In either of those circumstances, CMI may withhold pick up, shipment or delivery until 10 days after the date the payment or other default has been fully made or cured by you.
12. CMI warrants to you that the Product in the form as made available to the carrier will meet any Specifications in all material respects for a period of 30 days from the date the Product was made available to the carrier (the “Warranty Period”). No warranty shall be applicable if the failure of the Product to meet the warranty in any way arises from, without limitation, (i) damage during loading or shipment; (ii) improper storage or handling, accident or abuse; (iii) occurrences or circumstance beyond CMI’s control, including any Restrictive Event (as defined in Section 18); (iv) any act or omission by you or others, including any alteration or use of the Product; (v) issues or problems external to the Product; or (vii) ordinary wear and tear and depreciation. No warranty shall cover any damage or defects to the outward appearance of Product, such as scratches, chips, dents, fading, or color variations.
If the Product fails to conform to the above warranty during the Warranty Period and you provide written notice to CMI within the Warranty Period and within two days of the date you became aware of the failure, CMI will, at its sole option and in its sole discretion, either repair or replace the Product or refund you the portion of the purchase price for the Product that has been paid by you. Your notice must , describe the alleged failure to meet the warranty, and the date you discovered the failure. You must reasonably cooperate with CMI, including performing all troubleshooting steps as may be designated by CMI and allowing an on-site inspection of the Product by CMI or its designated agent. If shipment to CMI is deemed necessary or appropriate by CMI, you must ship the Product to CMI, at your cost and risk of loss. CMI will reimburse you for those shipment costs within 10 days of CMI’s confirmation that you gave timely notice and of the failure of the Product to meet the warranty.
CMI’s entire liability and your sole and exclusive remedy under this Section is repair or replacement of the Product, or refund of the purchase price paid, as expressly provided in this Section.
Any repaired or replacement Product shall be provided without any express or implied warranties.
The above warranty is not assignable or transferable by you.
13. Except only for any limited express warranty as may be given by CMI in Section 11 above, CMI makes no express warranties, and hereby excludes and disclaims in entirely all implied warranties (including any implied warranties of merchantability, fitness for a particular purpose, title or noninfringement) with respect to the Product, any repairs or replacements made or provided by CMI pursuant to Section 11 above, or any other matter whatsoever.
14. Under no circumstances or theories (including breach of contract or negligence) will CMI be liable to you for any exemplary, special, incidental, consequential, punitive or other indirect or similar damages whatsoever (including lost profits, business or goodwill) that in any way arise from or are in any way related to or connected with the Product, your or any other person’s use of or inability to use the Product, any act or omission of CMI or any of its agents, or otherwise, and even if CMI knew or should have known of the possibility of any of those damages. In addition, in no event and under no circumstances or theories (including breach of contract or negligence) shall CMI’s total liability to you for any losses, damages, costs, expenses or other amounts exceed the amount paid by you for the Product.
14. You shall defend, indemnify and hold CMI harmless from and against, and you shall otherwise be reliable and responsible for, all suits, actions, proceedings, claims, counterclaims, demands, damages, losses, costs and expenses (including attorneys’ fees and court costs) that in any way arise from or are in any way related to or connected with your breach of any term of the Accepted Quote or these Terms or your handling or use of the Product.
15. You must pay interest to CMI at the rate of 1.5% per month, or, if less, the maximum rate allowed by law, on all amounts you owe to CMI that are not paid when due or that are for whatever reason not collected by CMI. Interest shall accrue from the date the amount was due until the date the amount is paid in full.
16. All payments by you shall first be applied against costs and expenses that are payable by you, next to any accrued but unpaid interest, and then to the amount payable by you for the Product.
17. You may not assign your Accepted Order or these Terms without the prior written consent of CMI, which consent may be delayed, conditioned or withheld in CMI’s sole discretion. If CMI consents to an assignment, you will remain liable for the full and timely performance of your Accepted Order and these Terms.
18. Notwithstanding any term or condition of these Terms that is or may appear to be to the contrary, CMI shall have no liability or responsibility, under any claim or theory whatsoever (including breach of contract or negligence), for any failure or delay by CMI to comply with any term of the Accepted Order, these Terms or any Specifications (including any failure to meet any pick up, shipment or delivery date), if the failure or delay is in any way related to or connected with, or in any way arises from, any Restrictive Event, regardless of the length of time of such failure or delay in performance. The term “Restrictive Event” means any event, occurrence, circumstance or other matter that is beyond the control of CMI or that renders performance by CMI commercially unreasonable, including any force majeure; act of God; epidemic, pandemic or other similar medical or health issue; labor disputes or shortages (however arising); strike; lack of availability of, or timely availability of, any inputs, products or resources (however arising); fire; flood; storm; acts of computer hackers or similar hardware or software issues, including ransomware; laws, rules, regulations, orders, directives, policies or other acts of any governmental or regulatory authority (including any lock down, shelter in place or similar directives, whether or not mandatory); or any act or omission of any other person. All pick up, shipment or delivery dates are in all events estimates only, and CMI does not guaranty any pick up, shipment or delivery date.
19. These Terms and the Accepted Order are entered into in the State of Florida, and shall be governed by and interpreted in accordance with the laws of the State of Florida, but without regard to provisions thereof relating to choice of law or conflicts of law.
20. No provision of these Terms can be amended or waived except in a writing executed by CMI.
21. These Terms (including any Specifications) and the Accepted Order constitute the entire agreement between you and CMI, and the offer to purchase and the sale of the Product is expressly limited solely and exclusively to the terms and conditions of these Terms (including any Specifications) and the Accepted Order. The Accepted Order is incorporated into these Terms. In the event of a conflict or inconsistency between these Terms and the Accepted Order, however, these Terms shall govern and control to the full extent of such conflict or inconsistency. CMI objects to any terms or conditions set forth in any purchase order or other documents or correspondence that were or are at any time provided by you or on your behalf, and no additional, different or inconsistent terms shall be a part of these Terms (including any Specifications) or the Accepted Order or shall have any force or effect whatsoever. No course of dealing or usage of trade shall be relevant or admissible to supplement or vary any of the provisions of these Terms (including any Specifications) or the Accepted Order. These Terms are binding upon and enforceable by your and CMI’s respective heirs, legal representatives, successors and assigns. There are no third-party beneficiaries to these Terms (including any Specifications) or the Accepted Order.
22. You and CMI waive any right to a jury trial in and with respect to any action, suit, proceeding, claim, counterclaim, dispute or other matter whatsoever in any way arising from or in any way related to or connected with these Terms, the Accepted Order or the Product. Any dispute arising out of these Terms or the Accepted Order shall be litigated exclusively in any court sitting in the State of Florida, except that actions to enforce any order or judgment may be brought in any court with jurisdiction.
23. If you fail to pick up or otherwise take possession of the Product within sixty (60) days of the date of production or the due date (to the extent the purchase order provides a due date), whichever is later, you shall incur a storage fee of 1.5% of the gross sales amount of the order and an additional 1.5% every thirty (30) days thereafter until you pick up or otherwise take possession of the Product. This storage fee will be assessed regardless of the reason for your delay, including if the Product is being withheld for lack of payment, for which CMI may invoice you or set off, recoup and/or withhold from amounts due to you, your subsidiaries or affiliates.