Sheet Pile LLC Terms & Conditions
1. TERMS AND CONDITIONS: The applicable Sales Order Acknowledgement issued by Seller, together with the terms and conditions contained herein shall constitute the entire
Agreement between the parties related to the sale of such goods by Seller (such entire agreement, this “Order”). Terms and conditions in Buyer's purchase order or other documents which are different or in addition to, or purport to alter, modify, or suspend these terms and conditions are expressly rejected by Seller, excluded from the Order, and waived by Buyer. No modification of these terms and conditions or the Order, whether arising from any usage of trade, course of dealing, course of performance, evidence of additional terms, or otherwise shall be binding unless contained in a writing signifying specific intent for such modification and signed by Buyer and Seller. Seller reserves the right to enforce these terms and conditions at any time, and none shall be deemed waived unless such waiver is in writing and signed by duly authorized representative of Seller. All rights and remedies granted to Seller herein are in addition to all remedies available at laow or in equity.
2. PRICES, PAYMENT TERMS: The purchase price of the goods shall be as set forth on the face of the applicable Invoice provided, however, if before shipment of this Order, Seller receives a price increase from its manufacturer or suppliers, Buyer agrees that Seller shall be entitled to adjust prices to those in effect at the time of shipment without notice. Terms of payment are net 30 days, unless otherwise negotiated prior to shipment of material. Retainage is not permitted.
3. DELAYS: Delivery dates are approximate. Seller shall not be responsible for any failure or delays in delivery caused by acts of God, acts of Buyer, fires, accidents, strikes or other labor disturbances, mill production schedules, equipment breakdowns, delay of carriers, total or partial failure for any reason of the usual sources of supply or transportation, requirements or request of any government or subdivision thereof or any similar or dissimilar cause beyond Seller’s control, whether or not such cause was due to the fault of Seller, in any such event, Seller may allocate its available supply among any or all buyers, including Buyer, on such terms and conditions as it deems reasonable, all without any liability whatsoever resulting from any failure or delay in delivery, in no way limiting the generality of the foregoing. Buyer expressly agrees that it is fully aware of possible delays, when applicable, due to Iinternational and oversees shipping, and agrees not to hold Seller liable for delays resulting from difficulties in obtaining adequate shipping facilities or intrusion of foreign governments, whether or not such delays are foreseeable. Acceptance of goods upon delivery shall constitute a waiver by Buyer of any claim for damages on account of non-shipment or delay in delivery or performance.
4. CREDIT: Performance by Seller shall be at all times subject to the approval of Seller credit department. Invoices submitted by Seller under this Order are payable in U.S. dollars to the remittance address and in the amounts set forth on the applicable Sales Order Acknowledgment. Discount is applicable only to the amount shown on the face of the invoice as “discount amount.” Neither freight charges nor taxes are subject to discount. Whenever, in Seller’s opinion, Buyer’s credit becomes impaired or other grounds for insecurity arise with respect to due performance by Buyer, Seller may suspend performance until such time as Seller receives satisfactory security for the performance of Buyer’s obligations. Such security may include different terms of payment from these specified on the Sales Order Acknowledgement and/or suspension of performance until such time as Seller has received full payment for any goods already delivered to Buyer or in process. If Buyer fails or refuses to agree to such different terms of payment or falls or refuses to give adequate security for due performance, Seller may, at its option, treat such failure or refusal as a repudiation of the portion of the Order which has not been fully performed or may resume shipments under reservation of a security interest. INTEREST OF 1% PLUS A SERVICE CHARGE OF 1/2% PER MONTH WILL BE CHARGED ON ALL ACCOUNTS NOT PAID ON THE DUE DATE. In the event Seller suspends performance and later proceeds with this Order, Seller shall be entitled to such extension of time for permanence as is necessitated by the suspension. Buyer agrees that, notwithstanding any endorsements or legend appearing on Buyer’s checks, drafts, or other orders for payment of money, they do not solely because of such endorsement or legend or otherwise, constitute payment in full or settlement of the account. No failure of Seller to exercise any right accruing from any default of Buyer shall impair Seller’s right in case of any subsequent default of Buyer. Seller may, at its sole discretion, assign any Seller credit analyst to Buyer’s account. All credit information supplied to Seller will be available for use by any Seller affiliate, parent corporation, and/or subsidiary for the purpose of determining creditworthiness.
5. STANDARD TOLERANCES: Except in particulars specified by Buyer and expressly agreed to in writing by Seller, the goods furnished hereunder are produced in accordance with standard manufacturing practices at the country of origin. All goods are subject to mill tolerances and variations consistent with ordinary manufacturing practice with respect to dimension, weight, straightness, section, composition, and mechanical properties: normal variations in surface and internal conditions: quality, deviations, tolerances, and variations consistent with practical testing and inspection methods; and regular mill practices of Seller’s suppliers, Seller is not responsible for any deterioration in quality which may result from processing operations or improper use by Buyer.
6. CHANGES: Buyer cannot modify, cancel or otherwise alter this Order (including but not limited to changes in specifications) without Seller’s written consent, and any such modification, cancellation, or alteration will be upon terms that protect Seller against a loss.
7. DELIVERY: Unless agreed for Buyer pickup, all deliveries are CPT (Incoterms 2020) named destination. For greater certainty, if named destination is outside of the United States, Buyer shall be responsible for all import formalities as Importer of Record and shall pay all applicable duties, taxes, import charges, and any other similar fees or charges related thereto. Should pricing exclude freight, Buyer shall pay Seller agreed-upon freight charges. Title and risk of loss pass upon delivery by or on behalf of Seller to the first common carrier, and claims shall be made directly with such carrier. In no event will Seller be responsible for spotting, switching to drayage or other local charges at destination.
8. LIMITATION OF LIABILITY: BUYER'S SOLE REMEDY AND SELLER'S SOLE OBLIGATION FOR ANY AND ALL CLAIMS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE SHALL BE LIMITED, AT SELLER'S OPTION, TO REPAIR, REPLACEMENT OR REFUND OF THE PURCHASE PRICE OF THE GOODS THAT DO NOT CONFORM TO THE SPECIFICATIONS. BUYER’S SOLE REMEDY FOR LOST OR DAMAGED IN TRANSIT SHALL BE BUYER'S CLAIM AGAINST THE CARRIER, AND BUYER WAIVES ALL SUCH CLAIMS AGAINST SELLER. IN NO EVENT SHALL SELLER BE LIABLE FOR DAMAGES IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE GOODS IN QUESTION, NOR SHALL SELLER HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO THOSE DAMAGES ARISING FROM THE USE OF THE GOODS, LOST PROFITS, ANY DELAY DAMAGES INCURRED BY BUVER (WHETHER LIQUIDATED OR OTHERWISE), WAREHOUSING, LABOR, HANDLING, AND SERVICE CHARGES NOT EXPRESSLY AUTHORIZED BY SELLER.
9. CLAIMS: Any industry practice or course of dealing between the parties to the contrary notwithstanding, Buyer shall inspect all goods promptly upon delivery (including delivery to any third party yard or similar facility if the title transfer to Buyer upon such delivery) and, in any event, no later than within ten (10) days., WITH TIME OF THE ESSENCE, provide written notice of any defect, breach of contract or warranty, or failure or delay of delivery. Goods for which damages are claimed shall not be returned, repaired, or discarded without Seller’s written consent. In the event Seller consents to a return of any goods, Buyer must follow Seller’s return policy. In the event of any conflict between these terms and conditions and the terms and conditions of Seller’s claims or return policy, these terms and conditions shall controlver. Notwithstanding any other provision hereof, any goods inspected by Buyer prior to shipment shall be deemed accepted upon shipment. Buyer shall provide Seller with proof of alleged defects and an opportunity to inspect the goods in accordance with Section 8 above. FAILURE TO GIVE SUCH WRITTEN NOTICE OR TO PROVIDE PROOF OF DEFECT AND AN OPPORTUNITY TO INSPECT CONSTITUTES WAIVER OF ANY CLAIM THAT THE GOODS ARE DEFECTIVE. No inspection or investigation of claims by Seller, even though occurring after the period above specified, shall be deemed a waiver of this provision. Buyer must immediately notify Seller and the carrier of all goods lost or damaged in transit.
10. GOVERNING LAW: This Order shall be governed by and construed according to the laws of the State of New Hampshire, without regard to conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not govern or apply to any transactions hereunder, and the parties hereby specifically agree to exclude application thereof.
11. TAXES: All taxes, duties, tariffs, or any other charges of any kind levied by any federal, state, municipal or other governmental authority that are required to be collected or paid with respect to the production, sale, or shipment of goods sold to Buyer shall be the responsibility of Buyer. Buyer agrees to pay all such taxes, duties, tariffs, or other charges and further agrees to reimburse Seller for any such payments made by Seller
12. ATTORNEYS FEES AND COSTS: Should Seller retain an attorney for any collection effort or the enforcement of any of this Order, and should Seller prevail concerning any aspect of such claim, defense or action, Buyer agrees to pay and reimburse Seller for Seller’s attorney fees, court costs and other litigation fees including, but not limited to, process servers sheriff fees, recording fees, photocopying, courier and facsimile fees, skip tracing fees, deposition fees, expert fees, and other fees and expenses.
13. AUTHORITY OF BUYER: Buyer through and/or by its designated agents who have entered into this Order represents and warrants that Buyer has authority to enter into this Order and any person who verbally ordered the goods sold hereunder or is signing this Order on Buyer's behalf has been duly authorized to execute or enter iInto this Order for Buyer.
14. STORAGE: If (a) the destination for the goods ils not ready, willing and able to receive the goods scheduled, or (b) Buyer is unable to accept, or requests delay in delivery for any reason Seller in its sole discretion may temporarily store such goods as an accommodation to Buyer. In such event Seller immediately may bill Buyer for the full purchase price of such goods along with commercially reasonable storage charges. All such amounts due net 30 days. Seller shall retain title and risk of loss to all stored goods until delivery. Upon reasonable request Seller shall provide evidence of casualty insurance on the stored goods.
15. APPLICABLE ONLY FOR SALES OR RESALES INTO THE STATE OF CALIFORNIA: Proposition 65 warnings are required by California law. Buyer acknowledges the Seller's goods may result in exposure to chemicals including lead and lead compounds that are alleged by the state of California to cause cancer, birth defects and/or other reproductive harm. Buyer is responsible for complying with California law regarding providing Proposition 65 notices to any customer iIn the State of California and shall indemnify, defend (if elected by Seller) reimburse and hold harmless Seller from and against any claims, damages, costs, expenses or other liabilities suffered by Seller as a result of Buyer's failure to comply with Proposition 65. For more information please go to www.P65Warnings.ca.gov.
16. INTELLECTUAL PROPERTY: Sheet Pile LLC is the proud owner of numerous patents and registered trademarks (as well as patent and trademark applications) that cover a number of Seller’s products and materials. More information can be found at SheetPileLLC.com. To the extent any product or solution is protected by Seller’s patents or trademarks, Sheet Pile will indemnify Buyer to the full extent of the law.