Additional Terms and Conditions of Sale
1. INTERPRETATION
Busby Metals means the affiliated companies of the group including the following: Busby Metals Limited, having its registered offices at Priory House, Syndenham Road, Guildford, Surrey, GU1 3RX; Busby Metals Inc., incorporated in the State of New York with an address of 55 Davids Drive, Hauppauge, NY, 11788; and Busby Metals LLC, incorporated in the State of Texas with an address of 850 Freeport Parkway, Suite 400, Coppell, TX 75019.
Customer is the person or entity shown on the face of this Invoice as the “Customer.” No other person or entity may claim any rights under this Invoice either through contract or as third party beneficiary thereto.
2. BINDING AGREEMENT.
Customer shall be bound by the terms of this Invoice whether or not signed by Customer unless Customer objects in writing specifying a term or terms involved. The failure of the Customer to object to the terms of the Invoice including but not limited to the identification of the materials shown on the face hereof, the unit pricing, the quantity or the total due within ten (10) days after the Invoice date shall be conclusively deemed to constitute acceptance by Customer of such terms. In addition to the foregoing, in the event Customer receives this Invoice prior to receipt of the materials, Customer shall be required to immediately notify Busby Metals of any dispute or discrepancy in the identification of the materials shown on the face hereof, the unit price, the quantity or the total due. The acceptance by Customer of the materials without such prior notification to Busby Metals of the dispute or discrepancy shall be considered a waiver by Customer of its claim and Customer shall be deemed to have accepted the materials in accordance with the terms of this Invoice. The order covered by this Invoice may not be cancelled by Customer unless Busby Metals consents thereto in writing.
3. PAYMENT.
Payment is due upon receipt of this Invoice unless other payment terms are specifically indicated. A finance charge at the rate of one and one half (1 ½ %) percent per month (or the highest rate permitted by law, if lower) of the Invoice balance will be charged if payment is not received within thirty (30) days from the due date. In the event Customer intends to resell the materials, it is agreed that payment to Busby Metals shall not be dependent upon receipt of payment by Customer from its buyer.
4. DELIVERY.
Subject to the term of this Invoice. Busby Metals will use its efforts to deliver the materials in an orderly and businesslike fashion following its receipt of the same from suppliers, etc. Unless otherwise specified on the face of this Invoice, Customer agrees to accept delivery of the materials when tendered by Busby Metals. In those instances when Busby Metals does not have the materials in stock it will schedule a delivery date following its receipt of the materials and Customer agrees to accept the delivery of the materials when tendered by Busby Metals. In the event Customer requests a postponement of the delivery, Busby Metals, at its option, may (a) require Customer to pay the balance due on the originally specified payment date or (b) utilize the materials for other customers or other purposes. In the event Customer pays the balance due as set forth in (a) above, Busby Metals agrees to hold the materials for Customer for a period not exceeding thirty (30) days in the event Customer does not pay the balance due as required, does not accept delivery of the materials within the thirty (30) day period after having paid for same, or Busby Metals elects to use the materials as set forth in (b) above, then in any of those events, Busby Metals, as it options, may refund to Customer any monies previously paid for the materials or reorder the materials for the Customer. Said reorder will be subject to availability and pricing schedules then in effect. Provided; however, that nothing set forth above shall relieve Customer of the obligation to pay for the materials as specified in this Invoice. Any postponement of the delivery date specified by Busby Metals at the request of Customer is an accommodation by Busby Metals and does not relieve Customer of its obligations hereunder. The delivery date specified by Busby Metals may be changed by it in accordance with the other provisions of this Invoice. Notification of a change in the delivery date shall be given to Customer orally or in writing. Time of delivery is not of the essence unless specifically set forth on face of this Invoice.
5. INSPECTION.
Customer shall inspect the materials within twenty four (24) hours after delivery. Unless Customer gives written notice to Busby Metals within ten (10) days from the delivery date specifying any damage or defect or other objection to the materials or shipment, it shall be conclusively presumed, as between Customer and Busby Metals, that Customer has fully inspected and acknowledged that the materials comply with all the terms, conditions and specifications of the order and that Customer is satisfied with and has accepted the materials in such condition and repair.
6. RETURNS.
No returns will be accepted without prior return authorization from Busby Metals. All requests for returns must be made within thirty (30) days from the delivery date. Materials tendered for return (except those tendered for defects) must be in saleable condition and, in all cases, must be packed in original cartons and returned shipping prepaid to Busby Metals accompanied by a return authorization number clearly displayed on the shipping label. Regardless of shipping terms, materials returned shall remain at the risk of Customer until actually received by Busby Metals.
7. WARRANTY.
Materials will, at the option of Busby Metals, be accepted for return, repair, or replacement, provided Customer gives written notice of the damage, defect or other objection to the materials, to Busby Metals within ten (10) days from the delivery date. Thereafter, Busby Metals shall have no further obligation. Busby Metals makes no representation that the materials are suitable for any specific use or purpose. In addition, Busby Metals shall not be responsible for mismarkings on shipments except to the extent that the same may be returned in accordance with the warranty contained herein. Busby Metals will be the sole judge of whether materials tendered for return are damaged or defective or whether Customer’s claim should be honored. Busby Metals will be given a reasonable opportunity to investigate any claim.
8. LIMITATION OF WARRANTY.
Busby Metals shall not be obligated to accept the tender of any materials for return, repair or replacement if Customer: (a) Makes or attempts to make alteration of any kind to the materials: (b) is negligent or does not use due care with regard to the materials: (c) Subjects the materials to abuse or other than ordinary use: (d) Permits any third party to do any of the foregoing: (e) Does not give notice of the existence or nature of any damage defect or other objection to the materials within the time periods specified herein.
9. LIMITATION OF LIABILITY.
THE OBLIGATIONS OF BUSBY METALS SPECIFIED IN PARAGRAPH 7 HEREOF SHALL BE THE TOTAL LIABILITY OF BUSBY METALS HEREUNDER. BUSBY METALS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, IN FACT OR IN LAW INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL BUSBY METALS BE RESPONSIBLE FOR PAYMENT OF ANY INCIDENTAL OR CONSEQUENTIAL DAMAGE INCLUDING WITHOUT LIMITATION LOSS OF USE, LOSS OF PROPERTY, PERSONAL INJURY, LOSS OF PROFIT OR LIABILITY TO THIRD PARTIES.
10. OWNERSHIP OF MATERIALS.
The materials shall remain the property of Busby Metals until payment has been made in full (including all finance charges, if any). Busby Metals may enter Customer’s premises while an employee of Customer is present in order to retake possession of any materials for which payment in full has not been received.
11. MATERIALS.
The size, gauge, temper, surface quality and tolerances of materials shall conform to industry or trade standards. Busby Metals may make reasonable adjustments to the quantity ordered in conformity with industry or trade practices. Quantity variations of 10% shall be acceptable. Customer may not reject materials based upon quantity variations as indicated above.
12. FORCE MAJEURE.
Busby Metals shall not be liable to Customer for any delay or failure to perform its obligations with regard to the order covered by this Invoice or otherwise if the same arises from any cause beyond the reasonable control of Busby Metals (whether or not similar in nature to any of those herein after specified), including but not limited to labor disputes, strikes, other labor or industrial disturbances, inadequate transportation facilities, delays or interruptions in transportation, currency or price fluctuation, acts of God, floods lightning, shortages of materials, rationing, utility or communications failures, malfunctions or disturbances, earthquakes, casualty, war, acts of the Public Enemy, riots, insurrections, embargoes, blockages or actions, restrictions, regulations or orders of any government agency or subdivision thereof.
13. SHIPMENT, LOSS OR DAMAGE.
Customer hereby assumes all risk of loss and damage to the materials in accordance with the terms of delivery. Unless otherwise specified on the face of this Invoice, risk of loss or damage shall pass to the Customer upon the earlier of (a) delivery of the materials to a common carrier for transportation to Customer or (b) delivery of the materials to the Customer’s facility or other location designated by Customer. The method of shipment of the materials shall be at the discretion of Busby Metals unless otherwise specified on the face of this Invoice.
14. INDEMNIFICATION.
Customer shall indemnify against and hold Busby Metals harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including attorney’s fees, arising out of, connected with or resulting from Customer’s possession or use of the materials. Customer shall pay Busby Metals all costs and expenses, including attorney’s fees, incurred by Busby Metals in exercising any of its rights or remedies hereunder or in enforcing any of the terms, conditions or provisions of this Invoice.
15. ASSIGNMENT.
The Customer may not assign its right under this Invoice without the prior written consent of Busby Metals.
16. TAXES AND DUTIES.
In the event any taxes or duties are imposed or increased on the materials covered by this Invoice between the date hereof and the date of delivery, Customer agrees that the amount thereof shall be added to the price of the materials covered by this Invoice. Customer further agrees to pay all applicable federal, state and local taxes, upon or on account of the materials covered by this Invoice.
17. NOTICES.
All notices required or permitted in connection with this Invoice shall be in writing and sent by registered or certified mail, returned receipt requested with proper postage affixed. Notices shall be sent to the address for the party indicated on the face of this Invoice or to such other address which the party may from time to time designate in writing. Notice shall be deemed given upon receipt.
18. ENTIRE AGREEMENT.
There are no representations, promises, or warranties, covenants or undertakings other than those contained in this Invoice which represents the entire understanding between the parties.
19. MODIFICATION AND WAIVER.
None of the terms of this Invoice shall be deemed to be waived or modified unless in writing and signed by the party against whom waiver or modification is sought. No waiver of any provisions in this Invoice shall be deemed a waiver of any other provision or a continuing waiver of that provision.
20. SUPERSEDING EFFECT.
This Invoice shall be deemed to supersede any agreement entered into by the parties concerning the materials, or any prior or subsequent course of dealing, written or oral, or any trade usage, or any terms or conditions of Customer’s purchase order or other documents received from Customer.
21. SEVERABILITY.
If any provision of this Invoice is for any reason declared to be invalid, the validity of the remaining provisions shall not be affected thereby.
22. APPLICABLE LAW.
For Busby Metals Inc. transactions this Invoice shall be deemed to have been made in the State of New York and all matters pertaining to its enforcement and interpretation shall be governed by and construed in accordance with the laws of that State. Any litigation relating to the terms of this Invoice or to a breach thereof or relating to the underlying transactions shall be in the State of New York, which shall be the exclusive jurisdiction. For Busby Metals LLC transactions this Invoice shall be deemed to have been made in the State of Texas and all matters pertaining to its enforcement and interpretation shall be governed by and construed in accordance with the laws of that State. Any litigation relating to the terms of this Invoice or to a breach thereof or relating to the underlying transactions shall be in the State of Texas, which shall be the exclusive jurisdiction. For Busby Metals Limited transactions this Invoice shall be deemed to have been made in England and all matters pertaining to its enforcement and interpretation shall be governed by and construed in accordance with the laws of England. Any litigation relating to the terms of this Invoice or to a breach thereof or relating to the underlying transactions shall be in England, which shall be the exclusive jurisdiction.
23. PARAGRAPH HEADINGS.
The paragraph headings of this Invoice are for convenience and reference only and in no way define, limit or describe the scope or intent of this Invoice nor in any way affect this Invoice.