Terms & Conditions
Mapes & Sprowl Steel, Ltd. (“Seller”)
1. Acceptance: The order, agreement or quotation provided to customer by Seller expressly limits acceptance thereof to the terms and conditions contained herein and any and all additional, different or otherwise inconsistent terms and conditions proposed by customer are rejected unless expressly agreed to in writing and signed by an authorized representative of customer and Seller. Seller and customer agree that these Terms and Conditions are accepted in good faith by both parties as the controlling and final terms and condition. Seller’s commencement of performance is not to be construed as acceptance of any terms and conditions proposed by customer, and Seller may commence performance in reliance on customer’s acceptance of these Terms and Conditions.
2. Prices: Prices quoted may be changed by Seller without notice to reflect changes in transportation, surcharges, or other costs. If a price has been quoted, any charges at destination for handling, storage, demurrage, and other accessorial services shall be borne by customer. Prices are F.O.B. Seller’s plant of manufacture unless otherwise specified in writing. Prices shown on the order, agreement or quotation provided to customer are subject to revision and such revision may be effected by Seller giving written notice to customer. Prices are stated in United States Dollars and payment shall be in United States currency. Invoice terms are net 30 days unless otherwise specified by Seller in writing. Seller reserves the right to modify or withdraw credit terms at any time without notice and to require guarantees, security or payment in advance of the amount of credit involved. Prices do not include sales, use, excise or any similar tax or governmental charge. Any tax or other governmental charge upon the production, sale, shipment or use of the product which Seller is required to pay or collect from customer shall be paid by customer to Seller unless customer furnishes Seller with a tax exemption certificate acceptable to the applicable taxing authority. Customer shall be responsible for obtaining any necessary governmental clearances including, without limitation, import and foreign exchange licenses, which may be required by any government other than the government of the United States.
3. Quantities: Seller will use commercially reasonable efforts to conform product to customer’s ordered quantities. Generally agreed upon quantity tolerances shall apply, as cited in the producing mill’s price pages in effect on the date product is shipped. For product quantities under 40,000# Seller reserves the right to supply product up to and including +/- 20% of customer’s ordered quantity.
4. Limited Warranties: Seller warrants that products supplied are of merchantable quality and conform in material respect to customer’s written specifications accepted in writing by an authorized representative of Seller. There are no other understandings, terms, conditions, or warranties of Seller not fully expressed in
these Terms and Conditions. THIS IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY SELLER WITH RESPECT TO THE PRODUCTS AND IS IN LIEU OF AND EXCLUDES IN ANY AND ALL RESPECTS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT SELLER’S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR CUSTOMER’S USE OR PURPOSE. Seller’s warranty does not extend to any losses, costs, fees or damages due to misuse, accident, abuse, neglect, normal wear and tear, negligence (other than Seller’s gross negligence), unauthorized modification or alteration, or improper installation, maintenance, application, corrosives, abrasives or foreign objects, or other external conditions to which the product is exposed or with respect to product used, supplied for use or made
available for use in any nuclear application of which Seller has not been specifically advised of in writing by customer and accepted in writing by an authorized representative of Seller at time of order inquiry.
5. Limitation of Customer Remedies: Seller’s liability hereunder shall be limited to the obligation to repair or replace only those portions of product proven to have failed to meet in material respect customer’s
specifications accepted in writing by an authorized representative of Seller, or to have been defective in workmanship at the time of delivery. In the event customer claims that Seller has breached any of its obligations to customer, whether in warranty or otherwise, Seller may request and require return of the product and refund
customer’s purchase price upon Seller’s receipt of the returned product. If Seller so requests the return of the
product, the product shall be redelivered to Seller in accordance with Seller’s instructions and at Seller’s expense. In the event Seller elects to require return of the product, Seller shall have no further obligation whatsoever to customer except to refund such purchase price upon redelivery of the product. Seller’s total cumulative liability in any way arising from or pertaining to any product sold to customer shall not in any case exceed the purchase price paid by customer for such product. For customer or third party supplier owned or supplied material which Seller processes for customer, Seller’s total liability shall not in any circumstances exceed the invoiced amount for services provided by Seller to customer on the invoice delivered to Seller upon delivery of such material.
6. Limitation of Liability IN NO EVENT SHALL SELLER HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR COMMERCIAL LOSS, CLAIMS FOR LABOR, OR CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY TYPE, WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT, ADMIRALTY, WARRANTY, STRICT LIABILITY, OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, CLAIMS BASED ON NEGLIGENCE OR ANY DELAY IN DELIVERY. IT IS EXPRESSLY AGREED THAT CUSTOMER’S REMEDIES EXPRESSED IN THIS PARAGRAPH ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND SHALL CONSTITUTE THE SOLE AND EXCLUSIVE RECOURSE OF CUSTOMER AGAINST SELLER FOR BREACH OF ANY OF SELLER’S OBLIGATIONS TO CUSTOMER. NOTWITHSTANDING ANY OTHER PROVISIONS OF THESE TERMS AND CONDITIONS, CUSTOMER AGREES THAT IN NO EVENT SHALL SELLER’S LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR RELATED TO THE SALE OF PRODUCTS TO CUSTOMER, OR THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCT, EXCEED THE PURCHASE PRICE OF THE PRODUCT.
7. Force Majeure: Seller shall not be liable for any act, omission, result or consequence, or be in breach of its obligations to customer, if performance of Seller’s obligations, including but not limited to any delay in delivery or performance, is prevented, delayed or made impractical by any cause beyond Seller’s reasonable
control, including, without limitation, which is due to (a) any act of God, the priority of any government order,
natural disasters or storms, fire, flood or other casualty, governmental regulation or requirement, breakdown of
equipment, epidemics, terrorism, political strife, strikes or other labor disputes or differences (regardless of whether or not Seller is capable of settling any such labor matter), accidents, delays in transportation, lack of or inability to obtain suitable raw materials, components, labor, fuel, or supplies, or other circumstances beyond Seller’s reasonable control whether similar or dissimilar to the foregoing and (b) acts or omissions of customer or its agents orrepresentatives.
8. Passage of Title; Delivery: Title and risk of loss to product sold to customer shall pass to customer upon delivery by Seller to a carrier at the point of shipment. Unless otherwise specifically agreed in writing, Seller has and hereby reserves the right to select the method of transportation. No delivery dates are guaranteed.
9. Technical Advice: Seller shall not be responsible for results of any technical advice provided by
Seller or its employees, agents or representatives in connection with the design, installation or use of products
ordered by or sold to customer.
10. Claims: Any claim by customer for damage during shipment, storage, or processing must be made
within ten (10) days of receipt of shipment of product by customer. Any claim that product does not conform in
material respect to customer’s specifications accepted in writing by an authorized representative of Seller shall be
barred unless such claim is made to Seller by customer in writing within thirty (30) days of receipt of shipment of
product by customer, which Seller and customer agree is a reasonable time. Seller must be given an opportunity to
investigate the claim before customer disposes of any product or customer’s claim will be barred.
11. Cancellation: Customer’s order may not be modified or rescinded except in writing signed by
authorized representatives of Seller and customer. If all or part of customer’s order is terminated by such modification or rescission, customer, in the absence of a contrary written agreement between Seller and customer, shall pay termination charges based upon costs determined by Seller in accordance with generally accepted accounting
principles plus a reasonable profit. Customer shall reimburse Seller for all costs incurred by Seller in the
settling and payment of claims and administrative expenses incurred by Seller related to any such termination.
12. Applicable Law: These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Illinois, without reference to principles of conflict of laws, including without limitation, the Uniform Commercial Code as adopted in the State of Illinois as effective and in force on the date hereof (“UCC”). Wherever a term defined by the UCC is used herein the definition contained in the UCC shall control.
Customer agrees that no suit, cause of action or arbitration shall be commenced against Seller by customer after the expiration of one (1) year from the date on which the cause of action accrued. Failure to commence suit, claim, cause
of action and/or arbitration within the time stated in this paragraph bars the commencement of any suit, claim, cause
of action and/or arbitration by customer against Seller. Customer waives any and all longer limitations periods that
are provided for at law or in equity. Seller reserves a purchase money security interest in each of the products
sold in the amount of its purchase price. This purchase money security interest will be satisfied by payment in full
by or on behalf of customer. After execution by customer, a copy of these Terms and Conditions may be filed with
appropriate state authorities to perfect Seller’s purchase money security interest.
13. Entire Agreement: These Terms and Conditions constitute the sole terms and conditions upon which Seller offers products for sale to customer. No other terms, conditions, or understandings, whether oral or
written, shall be binding upon Seller unless agreed to in writing by an authorized agent of Seller. If any provision
of these Terms and Conditions shall be declared invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired. Seller and customer further
agree that there should not be a “battle of forms” as described in Section 2-207 of the UCC.