GENERAL TERMS AND CONDITIONS OF SALE
These General Terms and Conditions of Sale (these “Terms and Conditions”) govern the relationship between Buyer and Metcraft Industries, Inc. (“Metcraft” and together with Buyer, the “Parties”), and all orders and agreements entered into by and between the Parties. These Terms and Conditions may be amended from time to time by Metcraft in Metcraft’s sole discretion. Buyer covenants to review these Terms and Conditions immediately prior to submission of any order and agrees to be bound by the Terms and Conditions in effect as of the date of such submission.
Pricing, Quotations and Orders. Price lists are subject to change without notice; consult the factory for current pricing. Quoted prices are guaranteed for 90 days from quote date. A written purchase order (a “Purchase Order”) is required by the factory on all orders. An order verification (a “Verification”) will be issued and delivered to Buyer upon acceptance of the Purchase Order, and no Purchase Order shall be effective until issuance of a corresponding Verification. The Verification may contain terms that modify or conflict with these Terms and Conditions; to the extent of any such inconsistency, the Verification will supersede such inconsistent terms. Orders that modify previously accepted Purchase Orders (“Change Orders”) must be formally accepted with the issuance of a new Verification and may be subject to additional pricing. Once a Verification has been issued, the Purchase Order is considered binding and cannot be cancelled without Metcraft’s written approval. Cancelled orders will be subject to a cancellation charge. [Orders with indefinite ship dates (i.e., hold for approval, will advise, etc.) have no status.]
Specification Requirements. All designs are subject to change without notice. Unless otherwise stated in the Purchase Order and expressly agreed to by Metcraft, goods furnished will be of the design in effect at the time the order is filled. Every effort will be made to quote on goods which are equal, or superior, to those specified by Buyer. Metcraft will provide submittal sheets but does not guarantee approval by architect/engineer/owner. When goods are approved as submitted, the Metcraft’s sole responsibility shall be to provide the goods as approved. Field dimensions are the responsibility of the Buyer and must be provided to Metcraft in writing, accompanied by Buyer’s signature. Current rough-in dimensions are provided with the submittal drawings. Dimension are subject to (+ or -) ¼” manufacturer’s tolerance and may change without notice. Metcraft Industries will not be responsible for use of superseded or obsolete drawings.
Payment and Taxes. If the Verification includes payment terms, such terms are subject to credit approval prior to shipment. Checks from Buyer must be dated and postmarked no later than the date specified for payment in the Verification. All periods for payment shall commence as of the invoice date, as set forth on the face of the invoice. Payment terms proposed by Buyer and appearing on any Purchase Order shall be deemed severed from such Purchase Order and shall be without force or effect. If Buyer defers delivery of goods, goods will be considered shipped on the date scheduled, and payment in full shall be due according to terms of the applicable Verification. Any additional costs that Metcraft incurs as a result of such deferred delivery will be the sole responsibility of Buyer, and Buyer agrees to, at Metcraft sole option, (1) pay any such additional costs in advance (including to any third parties as may be designated by Metcraft) and provide Metcraft with evidence of such payment, or (2) reimburse Metcraft for any expenses actually incurred and paid. Minimum invoice charges will be enforced. If exemption from sales taxation is claimed, a sales tax exemption certificate must accompany the Purchase Order if current copy is not already on file with Metcraft. Buyer agrees to provide Metcraft all information needed to file and perfect a mechanic’s lien, if deemed necessary or advisable by Metcraft.
Freight and Delivery Terms. All shipments are F.O.B. origin at Buyer’s risk. Freight terms shall be stated on the Verification. Metcraft reserves the right to designate the freight carrier. All shipping weights and shipping dates are estimates only and are not guaranteed. Metcraft shall not be liable for any loss or damage arising out of delay in delivery of any goods due to causes beyond its control. When an order is scheduled and in production, changes in shipping date can only be made by written notice and on the condition that (1) any charges incurred on account of such change will be Buyer’s sole responsibility and (2) such change does not impose an undue burden upon Metcraft, which Metcraft shall determine in its reasonable discretion. Items must be shipped within 6 months from date of Purchase Order unless this period has been extended in writing by Metcraft.
Claims and Shortages. The Buyer must file all claims for losses and damages in shipment [with the delivering carrier]; however, Metcraft will, if requested in writing, file such claim if Buyer has complied with all of the following requirements within 5 working days after receipt of shipment:
- Buyer inspects the shipment immediately upon receipt;
- Buyer causes the shipment to be inspected by the delivering carrier for losses and damage; and
- Buyer files an inspection report with carrier and sends copy of such report to Metcraft.
All claims for shortages must be reported in writing to Metcraft within 14 days of shipment.
All claims for failure to receive shipment must be reported in writing to Metcraft within 30 days of invoice date.
Warranties and Returns. All items are manufactured per specification. Goods manufactured by Metcraft are warranted to be free from defects in workmanship and materials for a period of one year from the date of shipment.
With respect to allegedly defective goods, Buyer must (1) provide written notice to Metcraft of any such defects promptly after discovery and within a one year period from the date of shipment and (2) return the allegedly defective good to Metcraft for inspection. Within a reasonable time after such notification and the return of the product, Metcraft, at its sole option, shall repair or replace defective good and deliver the replacement good to Buyer without cost to Buyer.
With respect to nonconforming goods, Buyer must advise Metcraft in writing within 30 days of shipment of any noncompliance with the signed submittal sheets. The return of any goods shall be based upon Metcraft’s reasonable discretion. No goods will be accepted for return without a written return materials authorization (“RMA”) from Metcraft. A request for an RMA must include the invoice number and invoice date. Within a reasonable time after such notification and the return of the nonconforming product, Metcraft shall deliver the replacement good to Buyer without cost to Buyer. Terms of the return shall be listed on RMA.
Repair or replacement is the Buyer’s exclusive remedy for any breach of warranty. In no circumstance shall Metcraft’s liability under this Section be greater than the amount paid by Buyer for the good that forms the basis for the Buyer’s claim. Furthermore, Metcraft will under no circumstances be responsible for consequential, incidental or special damages based upon breach of warranty, breach of contract, negligence, strict tort liability or any other legal theory. Notwithstanding any applicable statute of limitation, Buyer agrees that no claims arising under these Terms and Conditions or any Purchase Order may be brought more than one year from the date of shipment.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE.
The failure of Metcraft to insist upon the strict performance of these Terms and Conditions shall not constitute or be construed as a waiver or relinquishment of Metcraft’s rights thereafter to enforce any such term or condition or any other term or condition. These Terms and Conditions, and any and all Purchase Orders, Verifications or other agreements entered into by and between the Parties (each an “Agreement”) shall be governed by, and construed in accordance with, the laws of the State of Missouri, notwithstanding principles of conflicts of laws. The Parties agree that any action arising out of any Agreement shall be brought solely in the state and federal courts located in Jackson County, Missouri, and each Party hereby consents to the personal jurisdiction of such courts with respect to all actions arising out of any such Agreement.
NO AGENT OR REPRESENTATIVE OF METCRAFT IS AUTHORIZED TO MAKE ANY EXCEPTIONS TO THESE TERMS AND CONDITIONS OF SALE. IF LEGAL ACTION IS NECESSARY TO ENFORCE ANY OF THESE TERMS AND CONDITIONS OF SALE, THE BUYER WILL BE RESPONSIBLE FOR ANY COURT COSTS AND REASONABLE ATTORNEY’S FEES.