Taubensee Background


1. ACCEPTANCE: Taubensee Steel & Wire (“Seller”) agrees to sell the products covered herein on the following terms and conditions of sale which supersedes any additional or inconsistent terms and conditions of purchase of Buyer. Any alterations of Seller’s terms and conditions of sale shall have no force or effect unless otherwise agreed to in writing by Seller. The contract constitutes the entire agreement between Buyer and Seller with respect to the products furnished hereunder. No representation, promise or condition not set forth herein has been relied upon by Buyer or shall be binding on either party hereto. Acceptance by Buyer of the products sold hereunder shall constitute Buyer's assent to these terms and conditions.

2. PRICING: Seller's prices are subject to change without notice. The price of Seller's products shall be the price in effect at time of shipment.

3. CREDIT APPROVAL: Shipments, deliveries and performance of work shall at all times be subject to the approval of the Seller's Credit Department through approval of customer’s credit application. Not withstanding any other remedies, the Seller may at any time decline to make any shipment or delivery or perform any work due to past due invoices or poor recent credit experience.

4. TERMS OF PAYMENT: Subject to the provisions of CREDIT APPROVAL, terms of payment are Net 30 days from date of invoice. A variable discount will be allowed for early payment. Receipt for deposit of net payment is due within 30 days from the invoice date. Late payment will be subject to interest charges of 1 1/2% per month. Cash discount is NOT allowed on any transportation charges or taxes that may be included in the delivered prices, or on past dueinvoices, or current invoices while older invoices are still outstanding. All payments shall be made in United States currency.

5. TAXES: Any tax or custom duty which Seller may be required to pay or collect as a result of the transaction covered hereby, and which is not covered by a tax exemption certificate furnished by Buyer, is for the account of Buyer and Buyer shall promptly pay the amount thereof to Seller. Where the products covered hereby are to be exported, Seller reserves to itself all rights to drawback of duty paid on materials entering into the manufacture or production of the products exported, and Buyer shall furnish to Seller proof of exportation and all documents necessary tor Seller to obtain payment of such drawbacks. Out of state Buyers intending to pick up orders in Wheeling, Illinois with their own trucks must be registered with the State of Illinois Department of Revenue-Sales Use Tax division and must submit an Illinois Resale Number OR the order will be considered taxable by the State of Illinois and Seller must charge the applicable sales and / or use taxes.

6. CANCELLATION: Orders are not subject to cancellation or modification, in whole or in part, after Seller's acceptance, except with Seller's express written consent, and upon payment of a cancellation charge which will cover all costs Incurred by Seller to time of cancellation. If Buyer cancels the order without Seller's express written consent, the Buyer agrees to pay all costs incurred by Seller and to compensate Seller for any loss of profits that it may suffer in the event that Seller is unable to resell the products at the contract price. Customized or specially ordered material procured by Seller to specifically fill Buyer's order will be Invoiced to Buyer and shipped upon payment of said cancellation charges.

7. TITLE AND RISK: Unless otherwise stipulated herein, all sales are F.O.B. Seller’s plant and title shall pass to the Buyer upon delivery by the Seller to a carrier for transportation to the Buyer. Title to products sold F.O.B. destination shall pass to the Buyer upon arrival at the specified destination. All products shall be and remain at the risk of the Buyer from and after the time at which title passes. Unless otherwise agreed, Seller reserves the right to select the mode of transportation and the carrier.

8. DELIVERY DATES: Delivery dates set forth herein are subject to change and are predicated on conditions existing at this time. Seller shall exercise its best efforts to deliver within the time quoted but does not guarantee to do so, and shall not be held responsible for any loss or damage of ANY kind or nature whatsoever caused by the delay in delivery irrespective of the cause of such delay.

9. SELLER’S STANDARD PRACTICES AND TOLERANCES: Except to the extent otherwise agreed in writing all products shall be delivered in accordance with the manufacturer's standard practice and shall be subject to the normal tolerances, variations, and limitations of dimension, weight, shape, composition, mechanical properties, structure, quality, and service conditions consistent with practical testing and inspection methods. Buyer agrees to accept any quantities delivered hereunder which do not vary more than 10% from the contract amount and to pay for such quantities at the contract price.

10. MECHANICAL PROPERTIES-CHEMICAL ANALYSES: Data referring to mechanical properties or chemical analyses are the result of tests performed on specimens obtained from specific locations of the product(s) in accordance with prescribed sampling procedures, any warranty thereof is limited to the values obtained at such locations and by such procedures. There is no warranty with respect to values of the materials at other locations.

11. SHORTAGES OR DAMAGED PRODUCTS: It is the duty of the Buyer (or his representative) to verify all shipments as to both the quantity and the quality of the product delivered prior to signing or initialing the trucking company's delivery receipt. Seller's invoice weights, volume, sizes, and tares established in good faith shall govern unless proved erroneous. Variations of one percent or less from invoice quantity of any shipment shall be disregarded. An shortages and / or damaged products must be noted by customer in writing on the delivery receipt. All claims for shortages or for damaged material must be made within ten (10) days after receipt of shipment. ANY SHORTAGE OR DAMAGE CLAIMS NOT NOTED ON A DELIVERY RECEIPT WILL NOT BE HONORED BY SELLER. No claims for damaged material will be recognized beyond its cost to Buyer and Seller shall in no event be liable for handling, storing, or processing costs incurred by Buyer or for any consequential damages resulting from the use of such material. No part of such material shall be returned to Seller without its consent.

12. FORCE MAJEURE: In the event of any delay in the Seller's performance due to fires, strikes, labor disputes, war, civil commotion, epidemics, embargoes, floods, delays in transportation, shortage of trucks, fuel or other materials, default of failure of carriers or contractors, shortage of labor, acts of God, acts, demands, requirements or requests of any state or government or to any other cause beyond the reasonable control of the Seller whether or not a kind hereinbefore specified, notwithstanding that such cause is operative at the time of making the contract, the Seller shall have such additional time within which to perform this contract as may be reasonably necessary under the circumstances. Notwithstanding the foregoing, if performance of the contract by the Seller be delayed for a period exceeding thirty days by any such cause either party shall at its option be relieved from further responsibility, that in respect of products manufactured or in process of manufacture at the dale of exercise of the option such relief from responsibility shall be subject to the consent of the Seller.

13. WARRANTY: The Seller warrants that all products sold herein are of merchantable quality but unless otherwise herein specified makes no warranty or representation that the products sold are fit for any particular purpose. Save as specifically provided herein, all expressed or implied warranties, whether they be statutory or otherwise, and all representations or conditions as to products are expressly excluded.

14. BUYER'S REMEDIES: If any product furnished to the Buyer shall fail to conform to the contract between the Buyer and the Seller, the Buyer shall give prompt written notification thereof within 30 days from receipt to the Seller. Such non-conforming product shall be held for the inspection of the Seiler and the liability of the Seller in respect thereof shall be limited to the replacement of such product subject to the return of such product or, at the discretion of the Seller, to a return of the sale price less the salvage of scrap value thereof. THE SELLER SHALL IN NO EVENT BE LIABLE FOR THE COST OF ANY VALUE ADDED TO ANY NON-CONFORMING PRODUCT OF FOR ANY SPECIAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES OR THE FACT THAT ANY SUCH PRODUCT SHALL HAVE BEEN NON-CONFORMING. No claim of any kind, whether as to goods delivered or for non-delivery of goods, shall be greater in amount than the purchase price of the goods in respect of which such damages are claimed; and failure to give notice of claim within thirty (30) days from date of delivery, or the date fixed for delivery, as the case may be, shall constitute a waiver by buyer of all claims in respect of such goods. The remedy hereby provided shall be the exclusive and sole remedy of Buyer; and right of the Buyer to consequential and incidental damages is excluded.

15. CLAIMS: Claims for material that does not meet the specification will be considered only for the amount involved that is in excess of 1% of each item shipped at one time by the Seller subject to a minimum of 200 pounds per claim and no portion of Buyer’s inspection and testing costs will be assumed by Seller.

16. LIMITATION OF ACTIONS: Other than claims for damaged and / or non-conforming goods, any action for a breach of contract arising out of Seller’s acceptance of Buyer’s order of products supplied must be commenced within one (1) year after the cause of action has accrued.

17. PATENT INFRINGEMENT: Seller shall have no liability or responsibility with respect to any product supplied by or manufactured to the design of Buyer infringement of any United States or foreign patent and Buyer will indemnify and save Seller harmless from any such claim of infringement including payment of Seller's attorney's fees.

18. LABOR WARRANTY: Seller certifies that Seller complies with the Fair Labor Standards Act, as amended, and all regulations and orders issued pursuant thereto.

19. INDEMNIFICATION: Buyer shall comply with and require its agents and employees to comply with all directions, safety notices, warnings and other instructions furnished by Seller, and shall use and require its agents and employees to use reasonable care in the use of the products supplied by Seller. If Buyer fails to observe the provisions of this section, or if any injury or damage is caused, in whole or in part, by Buyer's failure to comply with applicable Federal, State or local safety requirements, Seller shall have no obligation to Buyer or any other person in respect thereof, and Buyer shall indemnify and hold Seller harmless against any claims, loss or expense for injury or damage arising directly or indirectly from any such failure. Seller specifically disclaims any and all liability arising out of the use of the products supplied hereunder other than the warranty liabilities to the original Buyer.

20. LITIGATION: In the event that Seller is made a party to any litigation or administrative proceedings as a result of its having entered into this agreement and in such proceedings the final judgment or order of the Court of Commission of competent jurisdiction is rendered in favor of Seller, Buyer agrees to reimburse Seller for its reasonable costs incurred in defending such suit or other proceedings, including reasonable attorney's fees.

21. GOVERNING LAW; REMEDIES: The rights and obligations of the parties hereto and the construction and the effect of any contract formed pursuant hereto shall be governed by the laws of the State of Illinois. If the Buyer fails to fulfill the terms of payment of any invoice or if the financial or business condition or responsibility of the Buyer shall become impaired or unsatisfactory to the Seller, the Seller reserves the right to withhold delivery of all or part of the products subject hereto, without prejudice to any other legal or equitable remedy, until past due payments are made and satisfactory assurance of payment is received. Upon Buyer's breach of this agreement, Buyer agrees to pay all costs, including reasonable attorney’s fees, incurred by the Seller in seeking to collect any past due amount owed by Buyer resulting from Buyer's breach. Buyer agrees that any and all actions relating to any amount owed by Buyer shall be brought in a court of general jurisdiction to the rights and remedies herein set forth be entitled to all rights and remedies provided for in the Uniform Commercial Code and other applicable law as from time to time amended, and at equity.