Terms & Conditions of Sale/Purchase
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.
ACCEPTANCE. Purchases by United States Pipe and Foundry Company, LLC (“USP” or “Purchaser”) are governed by Purchaser’s purchase order form submitted to the vendor identified on the face of such form (herein “Seller”) including, without limitation, these Terms & Conditions of Purchase (this “Order”). This Order including any terms, specifications, descriptions or other information on the face of Purchaser’s purchase order form, as well as those submitted on or with this Order by Purchaser and these Terms & Conditions of Purchase constitute a binding contract upon the terms and conditions herein when accepted by Seller, whether acceptance is by acknowledgment, by commencement of shipments, or otherwise. If any of Seller's prior proposals, quotations, or writings is in conflict with the terms of this Order, the terms hereof shall govern. Purchaser recognizes that Seller may, for operating convenience, utilize its own form of acknowledgment or confirmation of sale in accepting this Order; in such case, any provisions, terms or conditions in such form of acceptance which modify, conflict with, contradict or add to any provision, term or condition of this Order, shall be deemed to be waived (unless expressly accepted in writing by Purchaser) it being agreed that the provisions, terms and conditions of this Order constitute the entire contract between the parties. Not in limitation of the foregoing, this Order expressly limits acceptance to the terms and conditions of this Order and any alterations, modifications, additions or deletions of any terms or provisions of this Order made by Seller are hereby rejected and will not be binding upon Purchaser unless expressly accepted in writing by Purchaser.
DELIVERY. Time is of the essence with respect to this Order. Delivery is subject to any schedule and/or specifications including, without limitation, any designations as to location of delivery, contained in this Order. In the event of Seller's failure to deliver as and when specified, Purchaser reserves the right to cancel this Order, or any part thereof without charges therefor, without prejudice to its other rights, and Seller agrees that Purchaser may return part or all of any shipment so made and may charge Seller with any loss or expense sustained as a result of such failure to deliver. Any shipment made in advance of schedule, at Purchaser's option, will be (a) accepted but entry of invoice will be deferred until such time as shipment was scheduled to be made, or (b) returned to Seller at Seller's expense. Seller shall package all shipments in suitable containers to permit safe transportation and handling. Each delivered shipment must be labeled and marked to identify contents without opening and all containers must contain packing sheets listing contents thereof. Purchaser’s Order number and Seller’s vendor number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading.
EXTRA HANDLING CHARGES. Any extra handling charges incurred due to the failure of Seller to follow instructions in filling this Order will be billed back to Seller.
PAYMENT TERMS. Payment for the goods covered by this Order will be made as provided on the face of Purchaser’s purchase order form or if not specified payment will be made 45 days following delivery of shipment and submission of invoice by Seller complying with the terms of this Order. Each invoice submitted by Seller must reference the applicable Order and should be delivered to the billing address specified on the face of Purchaser’s purchase order form. Purchaser will be offered and may take Seller's customary cash discount. Should invoice bear a date prior to date the goods and/or services are received by Purchaser, the time during which discount for payment of invoices is allowed shall not begin to run until the date the goods and/or services are received by Purchaser. Sight draft shipments will not be honored.
INSPECTION. All goods provided by Seller will be subject to final inspection and acceptance by Purchaser within a reasonable time after receipt by Purchaser at the location designated in this Order, irrespective of prior payment. Purchaser may reject any goods or portion of goods provided by Seller that are not in conformance with this Order. Any such goods or portion of goods may be returned to Seller at Seller’s risk and expense, and at full invoice price plus applicable transportation charges. Seller will replace any non-conforming or defective goods to Purchaser upon Purchaser’s request.
WARRANTIES. Unless otherwise agreed to in writing by the parties, Seller expressly warrants that all goods and/or services provided to Purchaser conform to the terms and conditions of this Order. If goods are ordered to specifications, Seller expressly warrants that such goods strictly conform thereto and to any blueprints or drawings, samples or other description furnished by Purchaser in connection with this Order or, if not ordered to specifications, such goods will be fit and sufficient for the purposes intended and, unless otherwise agreed to in writing by Purchaser, will be new and not used or refurbished. Seller further expressly warrants that all goods and/or services provided by Seller in connection with this Order will be merchantable, of good material and workmanship, free from defect, and not subject to any security interest or other lien. These warranties shall survive acceptance and payment and shall run to Purchaser, its successors, assigns, customers and the users of the goods and/or services ordered herein and shall not be deemed to be exclusive.
CANCELLATION. Purchaser reserves the right to cancel this Order in whole or in part in respect to goods or services covered by this Order and not shipped or performed prior to such cancellation, without incurring liability, by written notice to Seller, before such shipment or performance, unless such goods were specifically manufactured to specifications of Purchaser. In the latter case, provided that Seller is not otherwise in default hereunder, Seller shall, unless otherwise directed, cease work and follow Purchaser’s directions as to disposal of work in progress and finished goods.
GENERAL INDEMNITY. Seller agrees to defend and save harmless Purchaser, its employees, agents, affiliates, successors, assigns, customers or users of the goods and/or services ordered herein, against all damages, claims or demands and all suits at law or in equity arising out of or related to any actual or alleged injury to any person, including death, damage to any property, defect in any goods or any other damage or loss alleged to have resulted from the goods and/or services hereby ordered or resulting from or relating to any actual or alleged breach of any of Seller’s obligations hereunder or other acts, including acts of omission, of Seller, its officers, agents, employees, or subcontractors, and upon notification of any such suit or claim to Seller, Seller shall defend the same at Seller's expense as to all costs, fees, and damages, and shall be responsible for all reasonable attorneys fees incurred by Purchaser. This indemnity shall survive the delivery and acceptance of any goods, materials or services and shall apply without regard to whether the claim, damage, liability or expense is based on breach of contract, breach of warranty, negligence, strict liability, or other tort. Purchaser may set off any amount owed to it by Seller against any sum payable hereunder by Purchaser to Seller.
PATENT INDEMNITY. Seller agrees to indemnify and hold Purchaser, its successors, assigns, customers, and the users of the goods and/or services ordered herein, harmless against loss, damage or liability including costs, expenses and reasonable attorneys fees which may be incurred on account of any claim, demand, suit or judgment involving infringement or alleged infringement of any patent rights, trade names or trade secrets or other proprietary right of a third party in the manufacture, use or disposition of any goods and/or services supplied hereunder, provided Purchaser shall notify Seller of any such claim, demand or suit and to the extent possible, Seller shall be permitted to defend the same or make settlement in respect thereof. Should Purchaser’s use, or use by its distributors, subcontractors or customers, of any goods or services purchased from Seller be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at its sole cost and expense, either (a) substitute fully equivalent non-infringing goods or services; (b) modify the goods or services so that they no longer infringe, but remain fully equivalent in functionality; (c) obtain for Purchaser, its distributors, subcontractors or customers the right to continue using the goods or services; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing goods or services.
FORCE MAJEURE. Purchaser shall not be responsible for failure to receive delivery if occasioned by unforeseeable causes beyond its control which makes such receipt commercially impractical including, without limitation, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation. At Purchaser's option the total quantity covered by this Order may be reduced to the extent of shipments refused or the delivery period specified may be extended by a time equal to that during which shipments shall be refused and such shipments thereafter made during the period of extension.
CONFIDENTIAL DATA. If Seller acquires knowledge of any Purchaser Confidential Information (as defined below) in connection with its performance hereunder, it agrees to keep such Purchaser Confidential Information confidential during and following the fulfillment, completion or expiration of this Order. “Purchaser Confidential Information” includes, but is not limited to, all information, whether written or oral, in any form, including, without limitation, information relating to research, development, products, specifications, drawings, blueprints, nomenclature, samples, models, methods of manufacture, trade secrets, business plans or practices, customers, vendors, finances, personnel data, work product, and other material information considered proprietary by Purchaser relating to the current or anticipated business or affairs of Purchaser which is disclosed directly or indirectly to Seller. Seller agrees not to copy, alter, or directly or indirectly disclose any Purchaser Confidential Information. Additionally, Seller agrees to limit its internal distribution of Purchaser Confidential Information to Seller’s employees who have a need to know such Purchaser Confidential Information, and to take steps to insure that the dissemination is so limited. In no event will Seller use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to protect the unauthorized use of Purchaser Confidential Information. Seller further agrees not to use Purchaser Confidential Information except in the course of performing or fulfilling this Order and will not use such Purchaser Confidential Information for its own benefit or for the benefit of any third party. All Purchaser Confidential Information is and shall remain the property of Purchaser. Upon Purchaser’s written request, Seller shall return, transfer or assign to Purchaser all Purchaser Confidential Information and all copies thereof.
INDEPENDENT CONTRACTOR. Seller is an independent contractor for all purposes without express or implied authority to bind Purchaser by contract or otherwise. Neither Seller nor any of its employees, agents, or subcontractors is an agent or employee of Purchaser. Seller shall be responsible for all costs and expenses incident to performing or fulfilling its obligations under this Order and shall provide Seller’s own supplies and equipment. Seller agrees that this Order does not create an exclusive relationship between Purchaser and Seller, and that Purchaser is free to order any goods or services, including similar goods or services from any party.
(a) In connection with the purchase of services for the installation of products manufactured by Purchaser, Seller shall furnish evidence of workmen's compensation and public liability insurance coverage in amounts satisfactory to Purchaser.
(b) If Seller performs services, constructs, erects, or inspects on premises owned or leased by Purchaser, Seller will present certificates of insurance to Purchaser in form and content reasonably satisfactory to Purchaser, for retention in Purchaser's files prior to the initiation of such work.
EMPLOYMENT, SAFETY AND HEALTH LAWS. Seller agrees at its own expense to comply with all applicable Federal and State employment, safety, environmental and health laws including OSHA, and Seller assumes all liabilities or obligations imposed by anyone or more of such laws with respect to this Order.
EQUAL OPPORTUNITY EMPLOYER. Purchaser and Seller, and each of them, is an equal opportunity employer.
GOVERNING LAW. The contract resulting from the acceptance of this Order shall be interpreted under and shall be governed by the laws of the State of Alabama.