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In consideration for the acceptance by Sandmeyer Steel Company (“Seller”) of Buyer’s order for the goods described on the face hereof (the “Goods”), which order may be accepted only at Seller’s home office in Philadelphia, PA, by sending of an Acknowledgment Form or the Goods themselves accompanied by Seller’s Form containing these terms and conditions, Buyer hereby agrees: to be bound by the terms and conditions of sale which follow or appear on the face hereof, which shall constitute the entire agreement between the parties with respect to the subject matter hereof; that Seller objects to and is not bound by any term or condition contained in any order, acceptance, acknowledgment or other form of Buyer which conflicts with or is in addition to the Terms and Conditions contained herein; and that all clerical errors appearing on the face hereof are subject to correction by Seller.
PRICES AND PAYMENT: The price for the Goods is as stated on the face of the Invoice. Payment is to be made to Seller in lawful money of the United States of America, within thirty (30) days after the date of the Invoice relating to the Goods. Buyer agrees to pay a late charge of 1-1/2% per month on the balance of the price unpaid after such date. A surcharge of 2% will be assessed on the dollar value of any invoice paid with a credit card.
DELIVERY; INSPECTION: Upon delivery of the Goods to Buyer, Buyer’s agent, or any carrier for shipment to Buyer, whichever occurs first, title and risk of loss of the Goods shall pass to Buyer. Buyer shall inspect the Goods immediately after they are delivered to Buyer or Buyer’s agents and shall notify Seller by telephone or telegraph within seventy-two (72) hours thereafter (confirmed promptly in writing) of any alleged non-conformity in amount or type of the Goods. Failure to give such notice within the time specified shall constitute acceptance of the Goods by Buyer.
TAXES: The amount of any sales, excise, privilege, use or other tax now or hereafter levied upon the production, sale, and/or shipment of the Goods shall be added to the price provided for herein and shall be paid by Buyer.
WARRANTIES: Seller warrants that the Goods will be free from defects for a period of thirty (30) days after delivery to Buyer or Buyer’s agent. This warranty does not cover defects due to accident or improper use. THIS WARRANTY IS EXPRESSLY GIVEN IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND SELLER EXPRESSLY DISCLAIMS AND BUYER EXPRESSLY WAIVES SUCH WARRANTIES.
REMEDIES: (a) Buyer’s exclusive remedy for breach of the warranty set forth above shall be the replacement of the Goods or portions thereof which are sent by Buyer (shipping charges prepaid) to Seller’s home office and are found by Seller to be defective. All replaced Goods or portions thereof shall become the property of Seller. If Seller shall not have received written notice from Buyer of an alleged breach of the warranty set forth above by the expiration of thirty (30) days from the delivery to Buyer or Buyer’s agent, Buyer shall be deemed to have waived the remedy contained in this paragraph. (b) In the event that the remedy set forth in (a) above fails of its essential purpose by reason of the surrounding circumstances, Seller shall, upon receipt of the Goods at its plant (shipping charges prepaid by Buyer) and verification by Seller that such remedy has so failed, refund to Buyer the purchase price actually paid (which refund shall be deemed an additional remedy of Buyer hereunder).
LIMITATION OF LIABILITY: Seller shall not be liable for any special, consequential or incidental damages (for labor charges, lost profits or otherwise) of any kind whatsoever with respect to the subject matter hereof including, but not limited to, those which may arise out of (a) breach of warranty, express or implied (of merchantability, fitness for a particular purpose or otherwise), whether contained herein, arising pursuant to a subsequent agreement of the parties hereto or by operation of law, or otherwise, (b) breach of contract, (c) negligence, (d) strict liability, or (e) violation of any other law, regulation, provision or court decision. In particular, but without limitation of the foregoing, Seller shall not be liable for loss or damage caused by delay in delivering the Goods, or any other delay in performance with respect hereto.
CANCELLATION: Seller may cancel the sale of all or any part of the undelivered portion of the Goods without any liability whatsoever upon the occurrence of any of the following: any proceeding, voluntary or involuntary, in bankruptcy or insolvency, is filed by or against Buyer; an assignee for the benefit of creditors or a receiver is appointed, with or without Buyer’s consent; or any event beyond Seller’s control occurs such that Seller finds it impractical to manufacture or deliver the Goods.
DEFAULT: If Buyer fails to make any payment whatsoever as and when due to Seller or to any other party, or breaches any contract with Seller, or files or has filed against Buyer any petition in bankruptcy or insolvency, or makes any assignment for the benefit of creditors, then (a) Buyer’s entire outstanding indebtedness to Seller pursuant to any order of Buyer shall become immediately due and payable without demand or notice by Seller, and (b) Seller may, at its sole option, cancel any order of Buyer or any shipment of Goods ordered by Buyer. Neither failure nor delay on the part of Seller to exercise any right, remedy, power or privilege provided for herein, or by statute or at law or in equity or otherwise shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, remedy, power or privilege. All of the rights given Seller hereunder or by operation of law shall be cumulative and concurrent.
GOVERNING LAW: The Terms and Conditions set forth herein and the subject matter hereof shall be construed in accordance with the law of the Commonwealth of Pennsylvania. With respect to the subject matter hereof, Buyer agrees to be subject to the jurisdiction and venue of the Philadelphia County Court of Common Pleas of Philadelphia, Pennsylvania or the United States District Court of the Eastern District of Pennsylvania and agrees that any litigation commenced by Buyer shall be brought and conducted in such courts.
