Columbia Steel Terms and Conditions of Sale
Effective Date: September 1, 2016
1. Purchase and Sale. Buyer may, from time to time, place orders for steel products (“Products”) from Columbia Steel Casting Co., Inc. (“Seller”), and Seller, may, in its sole discretion, agree to sell such Products to Buyer. If Buyer’s order for Products is accepted by Seller, by its issuance of its Order Acknowledgment, these Terms and Conditions of Sale, together with Seller’s Order Acknowledgment, shall constitute the terms of such sale and purchase. Buyer’s purchase order for any Products shall be deemed to be Buyer’s acceptance of the these Terms and Conditions of Sale, notwithstanding the fact that Buyer’s purchase order may contain terms different from or additional to the terms contained herein; in such event, such different or additional terms are rejected by Seller and shall not be included within the parties’ agreement.
2. Purchase Price. The purchase price (“Purchase Price”) for the Products shall be price listed on Seller’s Order Acknowledgment with point of delivery as described using IncoTerms2000, in US currency. All deliveries shall be continuously subject to the approval by Seller’s Credit Department. The Purchase Price shall be exclusive of sales, use, excise, or any other taxes or duties imposed by any governmental authority. Seller may add such taxes and duties due to the amounts due under Seller’s invoice, and they shall be paid by Buyer.
3. Terms of Payment. Unless otherwise specified in Seller’s Order Acknowledgment, invoiced amounts are due in full within 30 days from the date of invoice. All taxes and duties, including without limitation all taxes imposed by any governmental authority, and which the Seller may be required to pay or collect upon or with reference to the sale, purchase, delivery, storage, transportation, freight, use, or consumption of Products, shall be payable by Buyer.
4. Limited Warranties. Seller warrants that the Products (a) shall conform to the descriptions, quantities and specifications contained in Seller’s Order Acknowledgment, and (b) be free from defects in materials or workmanship.
5. DISCLAIMER OF OTHER WARRANTIES. THE LIMITED WARRANTIES ABOVE ARE THE EXCLUSIVE WARRANTIES RESPECTING THE PRODUCTS. SELLER SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES THAT MIGHT BE ASSERTED THROUGH COURSE OF DEALING OR USAGE OF TRADE.
6. Delivery Date. Delivery dates for the Products set forth in Seller’s Order Acknowledgment or otherwise are estimates only and subject to change, unless Seller by separate written instrument expressly guarantees that shipment will be made at or before a certain specified time.
7. Inspection. Buyer shall promptly inspect the Products upon receipt. FAILURE TO INSPECT SHALL RELIEVE SELLER OF ALL WARRANTIES FOR DEFECTS THAT INSPECTION WOULD REVEAL. Inspection and classification of material, other than Seller’s regular foundry inspection, as well as surveys and tests of material (including X-Ray, Gamma-Ray, Magnaflux and other nondestructive testing), and the issuance of all certificates of material tests, shall be arranged for by Buyer and shall be charged to Buyer’s account.
8. Buyer’s Remedies. Claims for breach of warranty (if any) must be reported promptly in writing by Buyer to Seller and in sufficient detail to fully apprise Seller of the claimed defect. Failure to provide such written notice shall conclusively bar Buyer from any claim for such alleged breach of warranty Seller shall be given reasonable opportunity to make investigation to include return of product, portion of product or on-site examination as Seller deems appropriate In the event Seller verifies a breach of the warranty the Buyer shall be given credit not to exceed the amount invoiced for the Products, or, at Seller’s option, the Products shall be replaced at Seller’s expense, with same IncoTerms2000 as original order
9. Limitations on Buyer’s Remedies. SELLER’S LIABILITY SHALL IN NO EVENT EXCEED THE INVOICED AMOUNT FOR THE PRODUCTS. Unless expressly agreed to in writing, Seller assumes no liability for expenses incurred in connection with work, of whatever kind, done on castings at the order of any person other than Seller. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY TO BUYER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY OF BUYER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY OF BUYER’S LOST REVENUES, LOST PROFITS, DOWN TIME, LOST PRODUCTION, OR LOSS OF CONTRACTS OR BUSINESS. Seller’s limited liability shall apply whether Buyer’s claim is for breach of warranty or contract or for negligence, tort, strict liability, professional liability, or any other cause of action.
10. Risk of Loss. Risk of loss of the Products shall be upon Buyer at all times after Seller’s delivery of the Products per IncoTerms2000.
11. Force Majeure. Seller shall not be liable for delays in deliveries caused by Acts of God or the public enemy, fires, or floods, strikes, work stoppages, slow-downs, or other differences with workmen; shortage of cars, fuel, material, or labor; delays in transportation; accidents at mills; or contingencies, similar or dissimilar to those above mentioned, beyond the reasonable control of Seller. Performance by Seller is expressly made subject to the effect of any and all government controls exercised on the production, price, sale, delivery, or use of the Products.
12. Cancellation. Buyer may not cancel, modify or delay receipt of orders that have been accepted by Seller after the date of Seller’s Order Acknowledgment without written agreement by Seller. Cancellation will be subject to charges if production has commenced.
13. Blueprints. Upon Buyer’s request, Seller will use diligence in checking Buyer’s blueprints before commencing to mold, and will report to the Buyer any discrepancies discovered, but the Seller’s so doing shall be for the Buyer’s accommodation only, and Seller shall not under any circumstances be liable for errors in castings resulting from faulty or deteriorated patterns. Seller shall not be liable for variations in castings resulting from incorrect computation of shrinkage by Buyer, for the addition of an amount of finish reasonable in foundry practice, or for the cost of straightening casting when, by reason of design, castings have warped or become distorted in the process of manufacture.
14. Patterns. Should it become necessary for Seller to alter or repair patterns supplied by Buyer, Seller may make a reasonable charge therefore. Any patterns left in custody of Seller by Buyer will be stored at Buyer’s risk. Seller assumes no liability for loss of, or damage to pattern equipment, except such loss or damage as may result from the Seller’s gross negligence or willful misconduct. When patterns are recalled, Seller may make a reasonable charge for crating and shall not be liable for handling or transportation expense. Buyer must request from Seller return of patterns at Buyer’s expense within two years of their last use by Seller. Seller may destroy such patterns not requested by Buyer.
15. Seller’s Remedies. Upon default by Buyer, Seller shall have all the rights and remedies available to it at law and in equity. Seller may accelerate all indebtedness due now or in the future from Buyer. Seller may defer further shipments to Buyer or may cancel any unshipped balance of Products without prejudice to any other rights that Seller may have against the Buyer. Seller’s remedies shall be cumulative and may be exercised singly or concurrently.
16. Entire Agreement. Any clause required to be included in a contract of this type by any applicable and valid Federal or State law or administrative regulation is incorporated by this reference. These Terms and Conditions, together with Seller’s Order Acknowledgment and Seller’s invoices, constitute the entire and complete agreement of the parties, and shall be conclusively considered as containing and expressing all the terms and conditions agreed upon by the parties, notwithstanding any prior or contemporaneous oral or written agreement or Buyer’s purchase order. Oral promises, statements, or agreements purportedly made by Seller shall not be valid. Additions to, deletions from, or modifications of the parties’ agreement shall be valid only if in writing and signed by both Buyer and Seller.
17. Choice of Law; Arbitration. The parties’ agreements shall be governed by the laws of the State of Oregon, USA. Any conflict, claim, or dispute between the parties arising under or related in any way to these Terms and Conditions, to the sale of or in any way concerning the Products, or either party’s performance or nonperformance of its agreement with the other party, shall be resolved by binding, mandatory arbitration under the authority of the Arbitration Service of Portland. Such arbitration proceeding shall be conducted in Portland, Oregon.