Terms of Sale

Terms Of Sale in the US

TERMS & CONDITIONS

The following terms and conditions apply to this sales order.

  1. AGREEMENT.By ordering or accepting the products described herein. Buyer agrees to the terms and conditions set forth herein and in any attachments hereto, none of which may be added to, modified, superseded or otherwise altered except by written instrument signed by an authorized representative of Seller and delivered to Buyer. Any different or additional terms in Buyer’s acknowledgement, purchase order or other document of Buyer are hereby rejected, notwithstanding Seller’s act of shipping products or similar act of Seller. These terms and conditions, together with those appearing on the face of this form, shall constitute the complete and exclusive statement of all the terms of the agreement between Seller and Buyer unless different, contradictory or additional terms and conditions are agreed to in a writing signed by authorized representatives of both parties. In no event shall this invoice be deemed an acceptance by Seller of any terms and conditions included with Buyer’s purchase order or similar Buyer document, and Seller’s performance hereunder is expressly conditioned on Buyer’s assent to these terms and conditions of sale. Acceptance of orders, and deliveries thereunder, are at all times subject to the approval of Seller’s Chief Financial Officer.
  2. TERMS OF PAYMENT. Invoices are issued as of the date of delivery covering deliveries from our stocks and as of the date of shipment covering direct mail shipments and are due and payable in lawful money, upon the issuance thereof, unless otherwise specifically agreed in writing. The acceptance of any order or specification and terms of payment on all sales and orders is subject to approval of Seller’s Credit Department, and Seller may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment or security or upon terms and conditions satisfactory to Seller’s Credit Department.
  3. DELIVERY AND TRANSFER OF TITLE. Unless Buyer takes possession of the products at one of Seller’s stores, products shall be shipped F.O.B. Origins, Seller’s shipping dock, freight pre-paid by Seller and added to the invoice. All title and risk of loss or damage in respect to the products shipped hereunder shall pass to Buyer on delivery to the first common carrier. For products picked up at one of Seller’s stores, title and risk or loss or damage transfers when Buyer takes possession of the products. Products are deemed accepted by Buyer either upon delivery to the carrier or when Buyer takes possession of the products at one of Seller’s stores, whichever is applicable. Buyer is responsible for payment of all costs relating to transportation, delivery and insurance. Buyer will be responsible for filing claims relating to any lost or damaged products.
  4. LATE FEE. All unpaid items will be charged a 1-1/2% per month late fee beginning the second month following delivery of shipment, such charge not to exceed the maximum charge permitted by law.
  5. FORCE MAJEURE. Seller shall not be liable to Buyer for any alleged loss or damage resulting from Seller’s failure to deliver products, or delay in making shipments, or resulting from acts of Buyer, fire, explosion, flood, earth-quake, war, riots, acts of terror, insurrection, civil disturbance, accident, storm, interruption or delay of transportation, shortages, strike or other labor dispute, inability to obtain materials and supplies, acts of government, any act of God, or any other causes of like or different character beyond Seller’s reasonable control.
  6. BUYER’S DUTY TO INSPECT. Buyer must promptly inspect all shipped products for shortages, conformity with Buyer’s purchase order, if any, and defects. If products appear not to conform to Buyer’s purchase order, if any, or to be defective upon receipt, Buyer shall discontinue their use and immediately notify Seller of such condition and afford Seller a reasonable opportunity to inspect the same. Claims for shortage or deductions for erroneous charges must be presented within fifteen (15) days after receipt of the products or they will not be allowed. Products may be returned to Seller only with Seller’s prior authorization, and only for repair of non-conformance or defect found upon receipt, due to shipment error by Seller or under warranty (see below).
  7. PERMISSIBLE VARIATIONS, STANDARDS AND TOLERANCES. All products are produced subject to (i) mill tolerances and variations in respect of dimension, weight, straightness, section, surface conditions, composition, mechanical properties, internal conditions and quality; (ii) deviations from such tolerances and variations consistent with practical testing and inspection methods and (iii) regular mill practices with respect to over and under shipments. Any representations, warranties or certifications by Seller shall be limited by the foregoing.
  8. LIMITED WARRANTY; OBTAINING WARRANTY SERVICE; WARRANTIES EXCLUSIVE. (a) Seller warrants to Buyer only that the products will substantially conform to mill tolerances and the written specifications therefor, for fifteen (15) days from date of shipment or the date Buyer takes possession of the products at one of Seller’s stores, whichever is applicable. If any sample or model was shown to Buyer, such model or sample was used merely to illustrate the general type and quality of products and not to represent that the products sold would strictly conform to the sample or model. Seller’s sole obligation under this express limited warranty shall be, at Seller’s option and expense, to repair the non-conforming product, deliver to Buyer an equivalent product to replace the nonconforming item, or if neither of the two foregoing options is reasonably available, Seller may, in its sole discretion, refund to Buyer, or credit to Buyer, the purchase price paid for the non-conforming product. SELLER SHALL NOT BE LIABLE UNDER THIS WARRANTY IF ITS TESTING AND EXAMINATION DISCLOSE THAT THE ALLEGED NONCONFORMITY IN THE PRODUCT DOES NOT EXIST OR WAS CAUSED BY BUYER’S OR ANY THIRD PERSON’S MISUSE, NEGLECT, IMPROPER INSTALLATION OR TESTING, UNAUTHORIZED ATTEMPTS TO REPAIR OR MODIFY THE PRODUCT, OR ANY OTHER CAUSE BEYOND THE RANGE OF THE INTENDED USE, OR BY ACCIDENT, FIRE, LIGHTNING, OTHER HAZARDS OR ACTS OF GOD. (b) TO THE FULL EXTENT ALLOWED BY LAW, THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
  9. LIMITATION OF LIABILITY. (a) SELLER WILL NOT HAVE ANY LIABILITY TO BUYER OR ANY THIRD PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, WORK STOPPAGE OR DELAY, OR ANY DAMAGES THAT ARE NOT DIRECT, ARISING OUT OF OR IN CONNECTION WITH THIS INVOICE OR OTHERWISE OR THE PERFORMANCE OR BREACH HEREOF, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. (b) SELLER’S MAXIMUM LIABILITY TO BUYER FOR DAMAGES HEREUNDER, IF ANY, SHALL NOT EXCEED THE ORIGINAL PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM. (c) Some countries or states do not allow the exclusion or limitation of implied warranties or the limitation of incidental or consequential damages for certain products supplied to consumers, or the limitation of liability for personal injury, so the above limitations and exclusions may be limited in their application to you. When the implied warranties are not allowed to be excluded in their entirety, they will be limited to the duration of the applicable written warranty. This warranty gives you specific legal rights which may vary depending on local law.
  10. ENFORCEMENT OF TERMS; NO WAIVER. Any forbearance or failure of Seller to enforce any provision of these terms and conditions or to exercise any right arising from any default of Buyer hereunder shall not affect or impair Seller’s rights, and no such forbearance or failure shall be construed as a waiver of Seller’s rights to act or to enforce each and every such provision. Seller’s exercise of any right or remedy provided in these terms and conditions shall be without prejudice to Seller’s right to exercise any other right or remedy provided by law or equity
  11. DEFAULT. If Buyer fails to fulfill the terms of payment on any order, Seller may defer further shipments until such payments are made, or may, at its option, cancel the order. Seller reserves the right, even after partial shipment on account of any order, to require from Buyer satisfactory security for performance of Buyer’s obligations, and refusal to furnish such security will entitle Seller to suspend shipments until such security is furnished, and, at Seller’s option, to cancel the order.
  12. PRICES; TAXES. The prices paid by Buyer shall be that stated on the face of this form. All prices are in U.S. dollars. The prices stated do not include taxes, duties, tariffs and other similar charges. Buyer is responsible for, and shall pay or reimburse Seller for, all taxes, including sales, use, gross receipts, excise, personal property, goods and services, value added, commodity or other federal, state or local taxes based on the sale to Buyer of the products, excluding taxes on Seller’s net worth and net income. Any taxes which Seller may be required to pay or collect under any existing or future law upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the products covered hereby, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of Buyer and Buyer shall promptly pay the amount thereof to Seller on demand.
  13. CONFLICT WITH APPLICABLE LAW: SEVERABILITY. No term or condition herein shall be effective or binding to the extent that it may be illegal or require an illegal action. If any provision of these terms and conditions shall be judged by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such adjudication shall not affect or modify any other provision of these terms and conditions, and the effect thereof shall be confined to the provision as to which such adjudication is made.
  14. ENTIRE AGREEMENT. These terms and conditions, together with any attached specifications and drawings, constitute the entire final written agreement between the parties, and are a complete and exclusive statement of all the terms of such agreement.
  15. ASSIGNMENT. Neither party may assign its rights or delegate its obligations hereunder without the prior written consent of the other, except that Seller may assign its rights and delegate its obligations hereunder to any subsidiary or affiliate or in connection with a merger, acquisition, spin-out or other transfer of all or substantially all of the business, stock or assets of Seller to which these terms and conditions relate. Any attempted assignment in violation of this provision shall be null and void. Subject to the foregoing, these terms and conditions are binding upon, inure to the benefit of, and are enforceable by the parties hereto and their respective successors and permitted assigns.
  16. GOVERNING LAW. These terms and conditions shall be construed in accordance with the laws of the State of Delaware without the application of the conflicts of law rules. The application of the United Nations Convention on Contracts for the International Sale of Goods (1980) to these terms and conditions is hereby excluded.

 

Terms Of Sale in Canada

TERMS & CONDITIONS

The following terms and conditions apply to this sales order.

  1. AGREEMENT. By ordering or accepting the goods described herein. Buyer agrees to the terms and conditions set forth herein and in any attachments hereto, none of which may be added to, modified, superseded or otherwise altered except by written instrument signed by an authorized representative of Seller and delivered to Buyer. Any different or additional terms in Buyer’s acknowledgement, purchase order or other document of Buyer are hereby rejected, notwithstanding any terms or conditions that may be contained in such acknowledgement, purchase order or other document of Buyer and notwithstanding Seller’s act of shipping goods or similar act of Seller. If this offer shall be deemed an acceptance of a prior offer by Seller, such acceptance is expressly conditioned on Seller’s written assent to any additional or different items contained herein. Acceptance of orders, and deliveries thereunder, are at all times subject to the approval of Seller’s Chief Financial Officer.
  2. TERMS OF PAYMENT. Invoices are issued as of the date of delivery covering deliveries from our stocks and as of the date of shipment covering direct mail shipments are due and payable in lawful money, upon the issuance thereof unless otherwise specifically agreed in writing. The acceptance of any order or specification and terms of payment on all sales and orders is subject to approval of Seller’s Credit Department, and Seller may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment or security or upon terms and conditions satisfactory to Seller’s Credit Department.
  3. TITLE. Except on goods sold pursuant to a conditional sales contract, all goods delivered from Seller’s stock, on any sale resulting from this quotation shall be complete, and title shall pass upon actual delivery at the place where the Buyer received possession of the goods, and on all direct mail shipments shall be complete, and title shall pass at the place from which shipment is made.
  4. LATE PENALTY. All unpaid items will be charged a 1-1/2% per month late penalty beginning the second month following delivery of shipment, such charge not to exceed the maximum charge permitted by law.
  5. FORCE MAJEURE. Failure of Seller to deliver hereunder, or delay in making shipments, if occasioned by fire, explosion, flood, earth-quake, war, riots, insurrection, civil disturbance, accident, storm, interruption or delay of transportation, shortages, strike or other labor dispute, inability to obtain materials and supplies, acts of government, any act of God, or any other causes of like or different character beyond Seller’s control shall not subject Seller to any liability to Buyer.
  6. BUYER’S DUTY TO INSPECT. Buyer must immediately inspect all material for shortages, conformity with order and defects. If goods appear not to conform to the contract between Buyer and Seller, Buyer shall discontinue their use and immediately notify Seller of such condition and afford Seller a reasonable opportunity to inspect the same. Claims for shortage or deductions for erroneous charges must be presented within fifteen (15) days after receipt of the goods or they will not be allowed. No material will be taken back and credited or replaced unless arrangements for return have been made with Seller. Seller may, at its option, replace those products proven defective or allow credit for an amount not exceeding the sum of the original purchase price thereof.
  7. PERMISSIBLE VARIATIONS, STANDARDS AND TOLERANCES. All products are produced subject to (i) mill tolerances and variations in respect of dimension, weight, straightness, section, surface conditions, composition, mechanical properties, internal conditions, and quality; (ii) deviations from such tolerances and variations consistent with practical testing and inspection methods and (iii) regular mill practices with respect to over and under shipments. Any representations or certifications by Seller shall be limited by the foregoing.
  8. DISCLAIMER OF WARRANTIES. Seller warrants only that the goods are as described herein, but no other express warranty is made if any model or sample was shown to Buyer, such model or sample was used merely to illustrate the general type and quality of goods and not to represent that the goods would necessarily conform to the sample or model. THE GOODS SOLD UNDER THIS AGREEMENT ARE PURCHASED BY THE BUYER “AS IS” AND “WITH ALL FAULTS” AND SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
  9. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES BASED UPON LOST GOODWILL, LOST SALES OR PROFITS, WORK STOPPAGE, DELAY, PRODUCT FAILURE, IMPAIRMENT OF GOODS OR OTHERWISE AND WHETHER ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, and in any case, Seller’s liability for any and all losses and damages sustained by Buyer and others rising out of or by reason of this contract shall not exceed the original purchase price of the products upon which liability is founded.
  10. ENFORCEMENT of TERMS; NO WAIVER. Any forbearance or failure of Seller to enforce any provision of these terms and conditions or to exercise any right arising from any default of Buyer hereunder shall not affect or impair Seller’s rights, and no such forbearance or failure shall be construed as a waiver of Seller’s rights to act or to enforce each and every such provision.
  11. DEFAULT. If Buyer fails to fulfill the terms of payment on any order, Seller may defer further shipments until such payments are made, or may, at its option, cancel the order. Seller reserves the right, even after partial shipment on account of any order, to require from Buyer satisfactory security for performance of Buyer’s obligations, and refusal to furnish such security will entitle Seller to suspend shipments until such security is furnished, and, at Seller’s option, to cancel the order.
  12. PRICES; TAXES. Prices for the materials or services covered herein, whether herein named or heretofore quoted or proposed, shall be adjusted to our prices in effect at the time of shipment. Unless otherwise indicated, prices are exclusive of all Provincial and Federal sales tax. Any taxes which Seller may be required to pay or collect under any existing or future law upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption, of any of the materials covered hereby, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of Buyer and Buyer shall promptly pay the amount thereof Seller upon demanding.
  13. CONFLICT WITH APPLICABLE LAW: SEVERABILITY. No term or condition herein shall be effective or binding to the extent that it may be illegal or require an illegal action. If any provision of these terms and conditions shall be judged by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such adjudication shall not affect or modify any other provision of these terms and conditions and the effect thereof shall be confined to the provision as to which such adjudication is made.
  14. MODIFICATION. No agreement or understanding in any way, modifying the conditions of this order shall be binding upon Seller unless made in writing and approved by Seller. Extras will be paid for only on the prior written order of Seller.
  15. ENTIRE AGREEMENT. This order together with any attached specifications and drawings, constitutes the entire final written agreement between the parties and is a complete and exclusive statement of all the terms of such agreement.
  16. ASSIGNMENT. This order and Buyer’s duties hereunder may not be delegated or assigned by Buyer without Seller’s written consent, and any assignment attempted without such consent shall be null and void and shall effect, at Seller’s option a cancellation of Seller’s obligations hereunder. Seller may assign this order and its interest therein to any affiliated corporation, or to any corporation succeeding to Seller’s business without the consent of Buyer.
  17. INTERPRETATION. This order shall be construed according to laws of the Province where the sale originated.

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