United States Pipe and Foundry Company, LLC ("USP") thanks Buyer ("You" or “Your”) for Your consideration of USP’s products ("Products").
ACCEPTANCE. Each acceptance or confirmation by USP of a purchase order ("Order") from You is expressly conditioned on Your assent to these terms, which shall constitute the entire agreement of sale and purchase of the Products specified thereon and shall bind USP and You ("the Parties"). USP specifically directs Your attention to the provisions in these terms concerning USP's warranty, liability, and claims and dispute resolution procedure. You acknowledge that your agreement to these terms shall be effective upon the earliest to occur of the following: (A) when USP accepts or confirms Your Order, or (B) when USP commences manufacturing operations for your Order, or (C) when You accept USP's first shipment of Products You Order.
PAYMENT. Payment terms for open credit sales are NET 30 DAYS from invoice date. All past-due amounts shall be subject to a service charge equal to the lesser of 1.5% per month or the maximum amount permitted by law. If USP deems Your credit unsatisfactory for any reason, USP may require payment in advance or require that You provide guarantees or other security satisfactory to USP in its sole discretion. If You fail to comply with these terms or the conditions of any Order, USP may cancel any unshipped portion of the Order and exercise any other remedies available under these terms or applicable law, and You shall remain liable for all unpaid amounts due to USP. USP does not accept the withholding of any retainage for any balance outstanding.
COSTS OF ENFORCEMENT. You agree to pay all costs, expenses, and reasonable attorney fees incurred by USP in exercising its rights and remedies, or in enforcing a term, condition, or provision of these terms or any other contract between the Parties.
TAXES. You agree to pay, and USP’s prices exclude, all current or future city, county, state, federal, and other taxes (including, without limitation, taxes based on or measured by sale, use, manufacture or shipment) imposed on Products sold to You. If any exemption from any such taxes is available, You shall present an applicable tax exemption certificate to USP before USP's first shipment.
SHIPPING; LOSS OR DAMAGE. USP's shipping dates are estimates based on factory conditions at the time USP receives Your Order and are subject to change due to circumstances which occur between the date of USP's quotation and USP's receipt of Your Order, or between USP’s receipt of Your Order and the date of delivery. USP shall not be responsible for delays occurring after USP's release of the Product to a carrier at USP's plant. Truck deliveries are limited to suitable and accessible locations. USP will not make adjustments (per these terms or otherwise) unless You give USP a written delivery form listing Product damage or loss, signed by carrier's agent or driver, within 48 hours after delivery. In any event, USP will not be responsible for any lost or damaged Products for which You have signed a receipt acknowledging You received such Products in good order.
FORCE MAJEURE. USP shall not be liable for any failure or delay in manufacture, shipment, or delivery of Products resulting from a cause beyond USP's control, including, but not limited to: acts of God, provisions of law, governmental regulations, accident, explosion, fire, weather, flood or other casualty, strike, lockout, or other labor difficulty, riot, war, acts of terrorism, insurrection, or scarcity of labor, raw material, production or transportation facilities.
WARRANTY; REMEDIES. USP warrants that its Products will conform to the description and specifications in Your Order(s) for them; provided, that, USP reserves the right to furnish thicker (wall) Product than You order without prior notice to You if it meets all other specifications in your Order(s). THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED, TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS. No representation or warranty, express or implied, made by any sales representative or other agent of USP which is not specifically set forth in these terms shall be binding upon USP. You assume all risk and liability resulting from Product use, whether singly or in combination with other Products. Per the claims procedure in these terms, USP may be liable to You for breach of the above warranty and any actionable negligence of USP, but USP’S SOLE LIABILITY (AND YOUR EXCLUSIVE REMEDY) WHETHER FOR BREACH OF WARRANTY OR FOR NEGLIGENCE IS EXPRESSLY LIMITED, AT THE OPTION OF USP, TO ONE OF THE FOLLOWING: (i) THE REPLACEMENT AT THE AGREED POINT OF DELIVERY OF ANY PRODUCTS THAT DO NOT CONFORM TO THE DESCRIPTION AND SPECIFICATIONS IN YOUR ORDER(S) FOR THEM, (ii) THE REPAIR OF SUCH PRODUCTS, OR (iii) THE REFUND OR CREDITING TO YOUR ACCOUNT OF THE AMOUNT YOU PAID FOR SUCH PRODUCTS. LIABILITY ON ANY TORT, CONTRACT, OR OTHER CLAIM, SHALL NOT EXCEED YOUR COST OF THE PRODUCT. IN ADDITION, USP SHALL HAVE NO LIABILITY FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, NON-COMPLIANCE WITH REGULATIONS OF FOREIGN GOVERNMENTS, OR DAMAGES SPECIFICALLY EXCLUDED IN THIS OR ANY OTHER SPECIAL WARRANTY LIMITATION.
NOTICE OF CLAIMS. USP will promptly consider settlement of claims per its policies and procedures. USP SHALL NOT BE LIABLE UNLESS IT RECEIVES WRITTEN NOTICE (for which TIME IS OF THE ESSENCE) OF YOUR CLAIM: (A) at the time You receive Products with a deficiency (such as a shortage) or defect that can be seen by visual examination, or (B) within ninety (90) days after You receive Products deficient for any other reason. As to Products USP sells, USP shall not be liable for a claim made by any claimant other than You. You must institute legal action for all claims against USP within one (1) year after the claim arises, or the claims shall be barred notwithstanding any statutory period of limitations. USP is not liable for any charge or expense incident to a claim absent the written consent of an authorized representative of USP.
YOUR SPECIFICATIONS. USP is not responsible or liable for the adequacy or performance of engineering, design, or specifications You furnish.
CANCELLATION AND CHANGES. You may not cancel or change any Order You have placed unless agreed to in writing by an authorized representative of USP, and you will remain responsible for any costs incurred by USP prior to or as a result of such cancellation or change. If You attempt to cancel or change any Order without USP’s consent, without limiting any other remedies available to USP, You shall pay to USP within fifteen (15) days of such cancellation or change the contract price, including applicable taxes, for all Products which have been completed prior to USP’s actual receipt of Your notice of cancellation or change. In addition, You shall pay to USP within fifteen (15) days of such cancellation or change all costs and other expenses incurred by USP for uncompleted items plus a cancellation charge in an amount equal to one hundred percent (100%) of the amount of the Order. In the event of any change, USP shall be entitled to revise its prices and delivery schedules to reflect such change.
RETURNS. You shall not return Product to USP without USP's prior written consent, which may be granted or withheld in its sole discretion. If USP consents to Your return of Product, USP will accept returned Product for credit if, in its sole discretion, it finds such Product to be in good and resalable condition. Such credit shall be the invoice price of the returned Product less 45% on acceptable Product, and less all shipping and handling charges. If such Product is not in good and resalable condition as determined in USP’s sole discretion, the credit given to You shall be the scrap value of the Product less all shipping and handling charges.
PATENTS. USP shall indemnify and hold You harmless from any damages awarded in a final nonappealable judgment against You in any proceeding to the extent such damages are based solely on a claim of direct infringement by any Product of a United States patent, provided that You notify USP promptly in writing upon Your first receipt of notice of the claim and give USP full authority, information and assistance for the defense or settlement of such claim. If the use of any Product is enjoined or materially restricted as a result of any such claim, at USP’s option and expense, it may (i) procure for You the right to continue using the Product, (ii) replace the Products with non-infringing Products of comparable quality, (iii) modify the Products so they become non-infringing, or (iv) remove the Product and refund the purchase price of such Product. USP shall have no liability for claims of infringement by any Products if used for any purposes other than those specified by USP. This provision shall not apply to any Products manufactured by any party other than USP, or to any use thereof with any such Products, or to any Products manufactured to Your design or specifications, and You agree to indemnify USP for any damages based on claims of patent infringement by any such Products. This section states USP’s entire liability for patent infringement.
NO ASSIGNMENT OR MODIFICATION. You shall not assign or transfer any contract with USP without its prior written consent. No modification of these terms shall be effective unless specifically agreed to in writing by USP, and no modification shall be rendered effective by USP’s receipt, acknowledgment, or acceptance of any purchase order or other form You provide that stipulates different terms or conditions, and USP hereby gives notification of objection to any such terms and conditions.
NO WAIVER. No waiver of these terms shall be effective against USP unless made in writing by an authorized representative of USP. You shall not assert that USP's waiver of Your breach of these terms, or of those of a later contract of the Parties, is a waiver of any other breach, nor assert that USP's failure to exercise a right arising from Your default is a continuing waiver of the right, and You agree that USP may exercise the right at a later time.
GOVERNING LAW. These terms, and each sale and purchase of Products to You by USP, shall be governed in all respects by the laws of the State of Alabama, including the Alabama Uniform Commercial Code, in effect on the date of each such sale, without giving effect to conflict of laws principles.
CORRECTIONS. USP reserves the right to correct typographical or clerical errors in a quotation, Order, or agreement without prejudice or legal effect.
SEVERABILITY. Any of these terms that a governing jurisdiction prohibits or declares unenforceable shall be ineffective only to the extent of such prohibition or unenforceability only in that jurisdiction, without invalidating the remaining terms or affecting the validity or enforceability of such terms in any other jurisdiction.
DISPUTE RESOLUTION. The Parties agree they may resolve any dispute between them arising from these terms or their dealings, relationships, and agreements by informal resolution, mediation, or non-binding arbitration in lieu of their rights to jury trial, in a forum or location and pursuant to AAA rules or otherwise, as jointly selected by the Parties, and each Party shall bear one-half of the fees, costs, and expense of such resolution unless they determine otherwise.
HEADINGS. Paragraph headings are for convenience of reference only, are without substantive meaning, and shall not be used to construe or interpret these terms.