Gibbs Interwire & Steel Co., Inc. Terms and Conditions of Sale

Complete Agreement | Customer Material | Credit Department Approval | Payment | Delivery and Risk of Loss | Warranty, Limitation of Warranty and Damages, Indemnification | Claims | Your Responsibility on Special Orders | Miscellaneous

1. Complete Agreement Revised 6-5-2018:
   Sales by Gibbs Wire & Steel Company LLC (. (“Gibbs Interwire”) 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 Interwire 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 Interwire has any authority to change in any manner the conditions of sale and shipment described herein. Your acceptance of delivery of the materials Gibbs Interwire 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.
2. Customer Material Processed by Gibbs Interwire:
   If your order concerns customer material that is to be processed by Gibbs Interwire, please refer to GIBBS WIRE & STEEL COMPANY LLC (Gibbs Interwire). TERMS AND CONDITIONS FOR TOLL-WORK for a complete statement of Gibbs Interwire’s rights and obligations.
3. Credit Department Approval:
   All shipments are subject to the approval of Gibbs Interwire’s Credit Department.
4. Payment:
   Payment terms are stated on the face of Gibbs Interwire’s Order Acknowledgment, where applicable, and Gibbs Interwire’s Invoice, as well as hereunder.
   1. All bills are payable (in funds at par) to the address Gibbs Interwire has designated for payment on the invoice.
   2. 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, tariff, duty, 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.
   3. All payments for the materials furnished hereunder shall be made upon the basis of materials delivered as shown by Gibbs Interwire’s delivery documents and records, whether signed by you or not.
   4. If you fail to make payment when due, or if Gibbs Interwire 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 Interwire set forth herein shall not be exclusive, and Gibbs Interwire shall have all other rights and remedies at law.
   5. 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 Interwire, then, until you cure such default, Gibbs Interwire may, at its election, apply any payments from you in such proportion to your various accounts with Gibbs Interwire 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.
   6. In the event of a default by you hereunder, Gibbs Interwire 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 Interwire shall have the right to enter your premises and remove the remaining materials.
5. Delivery and Risk of Loss:
   1. Unless otherwise specified in writing by Gibbs Interwire, all deliveries shall be F.O.B. Gibbs Interwire’ point of shipment. Freight shall be payable by you to the ultimate points of destination unless otherwise specified in writing to Gibbs Interwire. Gibbs Interwire 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 Interwire shall comply with the minimum requirements customarily applying to the method of transportation used for such products.
   2. Risk of loss shall pass to you upon Gibbs Interwire’s delivery to carrier or upon tender to your agent.
   3. Pursuing claims with carriers for loss or damage in transit shall be your responsibility.
   4. Responsibility for obtaining necessary transportation permits, if any, shall be with you unless otherwise assumed by Gibbs Interwire.
   5. Gibbs Interwire 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 Interwire to meet delivery schedules, delay in Gibbs Interwire’s Credit Department receiving information upon which approval of your order is based, or any cause, condition or contingency beyond the control of Gibbs Interwire, whether similar to those enumerated or not. In the event of any of the foregoing, Gibbs Interwire may apportion its production and all stock material among its customers in such manner as it may consider equitable. Gibbs Interwire 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.
6. Warranty, Limitation of Warranty and Damages, Indemnification:
   Gibbs Interwire 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 Interwire. . 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 Interwire’s responsibility under its warranty is limited as follows;

   1. To the repair or replacement of defective or non-conforming materials, or to the allowance of a credit for such materials.
   2. 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.
   3. 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 INTERWIRE WILL HAVE NO LIABILITY FOR MATERIAL YOU HAVE PROCESSED. In no event shall Gibbs Interwire bear the costs, including specifically labor costs of running and/or removing non-conforming material.
   4. Technical or other advice is furnished by Gibbs Interwire solely as an accommodation and shall not increase the scope of Gibbs Interwire’ responsibility or liability. Gibbs Interwire 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 Interwire in bad faith.
   5. Gibbs Interwire, 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 Interwire’s maximum liability for damages exceed the contract price for the materials claimed to be defective or unsuitable.
   6. Gibbs Interwire’s warranty shall not apply to customer material that is processed by Gibbs Interwire. GIBBS INTERWIRE 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 Interwire’s sole responsibility is as stated. Any and all representations, promises, warranties, or statement by Gibbs Interwire’ salesmen or agents which differ in any way from the terms of this Section shall be given no force or effect.

7. 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 Interwire 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.
8. Claims:
   1. Damages in Transit: Shipments must be inspected by you before unloading to ascertain any damage enroute. The carriers, when accepting material at Gibbs Interwire’s plant, are responsible for damages in transit, and all claims for damages in transit should be made promptly by you to the carrier.
   2. Claims for shortages, defective materials or nonconformity to specifications will be investigated promptly provided that you give Gibbs Interwire 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 Interwire immediately upon receipt of the materials.
   3. In any event, if you do not provide Gibbs Interwire with written notice of any defect or nonconformity within thirty (30) days after delivery, such failure to notify Gibbs Interwire 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.
   4. 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.
9. Miscellaneous:
   1. All changes in your order must be in writing and confirmed by Gibbs Interwire. All costs for changes will be at your expense, subject to the terms and conditions herein.
   2. Gibbs Interwire’s 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 Interwire’s rights under this Agreement, nor shall it constitute a waiver by Gibbs Interwire of any subsequent default by you in the performance of this Agreement. The terms, conditions, and limitations here, and the rights of Gibbs Interwire, may be enforced at any time in whole or in part,
   3. You agree to pay any and all costs, expenses, and attorneys’ fees, which Gibbs Interwire may incur or become liable for by reason of Gibbs Interwire enforcing or attempting to enforce the terms of this Agreement.
   4. This Agreement shall be construed according to the laws of the State of Connecticut.
   5. 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.
   6. 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.
   7. Captions have been inserted solely for convenient reference and shall not limit or affect the scope or meaning of any provision contained herein.
   8. All reference to “you” and “your” shall mean the buyer.