Intsel Steel – East
1. Terms and Conditions. Seller’s acceptance of Buyer’s order, including shipments to Buyer in response to any telephone orders, is expressly limited and subject to the terms on the front side of this Invoice and these Terms and Conditions. Seller and Buyer may have previously entered in to a Credit Agreement (the “Credit Agreement”). This Invoice and these Terms and Conditions (hereinafter collectively referred to as this “Invoice”) and, if applicable, the Credit Agreement, are the final, complete and exclusive agreement of the parties relating to the purchase of the products described herein, and supersedes all prior written or oral agreements or discussions of the parties relating thereto. In the event of any conflict between this Invoice and the Credit Agreement, the Credit Agreement shall control. The Invoice may not be altered, amended, supplemented, or canceled without Seller’s express written consent.
2. Payment Terms. Buyer agrees to pay the full Sales Price as specified on the front of this Invoice. The Sales Price does not include, and Buyer is responsible for paying, all sales, use, excise or other taxes upon the sale or use of the goods covered by this Invoice. Any amounts not paid by Buyer when due under this Invoice shall bear interest from the due date as provided in the Credit Agreement or, if there is no Credit Agreement, from the due date until the date the seller receives payment at the lesser of (i) 18% per annum or (ii) the maximum rate allowed by applicable law. Buyer shall pay to Seller reasonable costs of collecting any money due and unpaid hereunder, including reasonable attorney’s fees.
3. Purchase Money Security Interest. Buyer grants to Seller a security interest in the Products, as well as a security interest in any goods made or fabricated therefrom and the proceeds thereof, and agrees that said security interest secures any and all obligations of Buyer at any time owing to the Seller, whether now existing or hereinafter incurred. Seller may file a copy of this Invoice as a financing statement at any time.
4. Limited Warranty. For a period of 30 days after delivery of the products to Buyer, Seller warrants that the products covered hereby conform to the description and specifications on the front of this Invoice; this warranty does not extend to any surplus or secondary material. Buyer shall give Seller prompt notice within the 30-day warranty period specified above, and an opportunity to inspect any products furnished hereunder which the Buyer claims do not conform to this warranty. If Buyer notifies Seller during the warranty period specified above that the products are not in compliance with the referenced limited warranty, Seller will, at Seller’s option, (i) replace any non-conforming products at the agreed place of delivery, (ii) repair such products, or (iii) refund or credit buyer the purchase price of such products, with such remedy being the sole and exclusive remedy of Buyer for breach of this warranty. THIS WARRANTY IS IN LIEU OF, AND SELLER EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, IN FACT OR BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO EMPLOYEE OR REPRESENTATIVE OF SELLER IS AUTHORIZED TO CHANGE THIS WARRANTY IN ANY WAY OR GRANT ANY OTHER WARRANTY. SELLER EXPRESSLY DISCLAIMS, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, IN FACT OR BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO SURPLUS OR SECONDARY MATERIAL UNLESS SPECIFIED IN WRITING ON THE FRONT OF THIS INVOICE.
5. Limitation of Liability. In no event shall Seller, or any of its officers, directors, employees or agents, be liable for special, indirect, incidental, consequential, exemplary or punitive damages (including, without limitation, any loss of revenues or profits) directly or indirectly arising or resulting from the breach of any of the terms hereof or from the sale, handling or use of the products sold. Any damage recovery of Buyer against Seller for any matter arising under or relating to this Invoice, whether arising in contract, tort, warranty, strict liability, product liability or otherwise (including without limitation any claim for negligence) shall be limited to the amount paid by Buyer for the products.
6. Returns. No products may be returned for credit and no order may be canceled, in whole or in part, without the prior written consent of Seller. If Seller consents to a return, Seller may assess a restocking fee.
7. Seller Agreements. Until such time as a Seller has been paid in full for the products purchased hereby, Buyer agrees: A. To keep the products free from any adverse security interest; and B. If Buyer defaults in the payment due herein or fails to comply with any of the terms hereof, Seller or any officer of the law may take immediate possession of the products without demand, and for this purpose, may enter the premises of Buyer where the products may be located and remove them.
8. Governing Law. This Agreement shall be governed by the laws of the State of Texas, without regard to any principles of conflicts of law.
9. Venue. This Invoice is performable in Harris County, Texas, which shall be a proper place of venue for suit on or in respect of this Invoice. Buyer hereby irrevocably agrees that any legal proceeding in respect of this Invoice shall be brought in the district courts of Harris County, Texas, or in the United States District Court for the Southern District of Texas, Houston Division.
10. General Provisions. Seller shall not be liable for damages for failure to perform or for any delay in performance arising directly or indirectly from any cause beyond the reasonable control of Seller. Any arithmetical or typographical errors on the face hereof or incorporated herein are subject to correction by Seller. Waiver of any breach of this Invoice shall not be construed as a waiver of any other breach. Buyer may not assign this Invoice without the prior written consent of Seller. If any provision of this Invoice is held invalid or unenforceable, such invalidity or unenforceability shall not affect the enforceability of any other provision herein, and this Invoice shall be construed as of such invalid or unenforceable provision were omitted.
11. Disputes. In the event of any dispute related to or arising from this Invoice, one party shall notify the other party in writing of the item disputed, specifying the reason(s). Disputes that cannot be resolved by staff of the parties within five (5) business days after receipt of written notice shall be elevated to senior management of the parties for resolution. If a disputed item cannot be resolved by senior management of the parties within fifteen (15) business days after a party gives written notice of the dispute, then the parties agree that such dispute shall be subject to non-binding mediation as a condition precedent to the institution of legal proceedings by either party. The parties shall share the mediator’s fee and any filing fees equally. The mediation shall be held in Harris County, Texas, unless another location is mutually agreed upon. Any settlement agreements reached through mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.
12. MSDS CAUTION – WHEN MATERIAL IS SUBJECTED TO WELDING, CUTTING, GRINDING OR OTHER FABRICATION OPERATIONS, HAZARDOUS SUBSTANCES AND/OR FUMES MAY BE RELEASED. CONTACT SELLER FOR MATERIAL SAFETY DATA SHEETS ON THESE PRODUCTS.