ProTrade Steel Company, Ltd. Terms and Conditions of Purchase

 

Last modified: December 22, 2016

 

  1. Terms and Conditions. This contract (“Contract”) constitutes the entire agreement between the parties.  This Contract constitutes the entire agreement between the parties with respect to the subject matter, and supersedes all prior negotiations, representations or agreements, written or oral, and may not be supplemented by any course of dealing, course of performance, or trade usage, unless otherwise provided herein.
  2. Acceptance. Receipt of this Contract by Seller or Seller’s shipment of any material (“Material”) specified in the Contract shall be deemed to be an acceptance by Seller of the terms and conditions of this Contract regardless of whether or not the Seller has acknowledged this Contract.  Any conditional or inconsistent terms or conditions are not binding on ProTrade Steel Company, Ltd. (“ProTrade”) unless agreed to in writing by ProTrade.
  3. Condition. It is a condition of this Contract that Seller on its own behalf and on behalf of its subcontractors certifies that it and they have complied with all of the provisions of all applicable federal, state and local laws and of all rules, regulations and orders issued thereunder, in the manufacture or production and sale of the Material specified herein.
  4. Shipping. If the F.O.B. point is not specified in this Contract, the price stated is F.O.B. delivered to the consignee.  If the price stated is F.O.B. shipping point, Seller must route shipment to insure lowest possible freight and load transportation equipment to the guaranteed minimum weight stipulated in this Contract.  If Seller uses a carrier or route not stipulated in this Contract or fails to meet the agreed weight minimum, additional freight costs will be borne by Seller.
  5. Price Changes. If the price stated in this Contract is based on market pricing as published in trade publications such as “Scrap Price Bulletin” or “American Metal Market” then ProTrade reserves the right to adjust its pricing formula in the event that such publication makes it known that they have reassessed or changed their market appraisals independent of the market move for that month.  Such non-market move driven changes are typically clearly marked by the publication.
  6. Expenses; Shortages. Seller must load clean transportation equipment.  Any expense or shortage incurred because of foreign matter in the Material shipped, or because equipment is loaded in excess of or less than carrier’s loading rules, will be for Seller’s account.
  7. Written Notice. Seller must provide railcar or barge numbers and date of shipment to ProTrade by written notice upon loading and release to carrier.  Railcars or barges shipped after their noticed date of shipment are at Seller’s risk.  Any demurrage or other costs caused by the failure of Seller to furnish timely and accurate shipment information to ProTrade will be borne by Seller.  Risk of non-availability of railcars or barges and any resulting delays in shipment or delivery is on Seller and in no event will relieve Seller of its obligations under this Contract.
  8. Rejected Materials. All Material shall be received subject to the acceptance of the ultimate consumer, with the weights and grading of that consumer to govern.  Rejected Material remains Seller’s property at its risk and subject to its disposition.  Rejected shipments are to be replaced at ProTrade’s option.
  9. Termination and Cancellation. In the event of nonconformity, nondelivery, partial delivery, or late delivery of the quantity specified in this Contract, ProTrade may at its option (i) cancel this Contract, (ii) replace the Material in the open market after due notice and within a commercially reasonable time and recover from Seller the difference between the market price of the Material at the time of replacement and the contract price, and (iii) obtain any other remedy or relief provided by law including, but not limited to, the right to a setoff against any amount Seller is due from ProTrade or its affiliate companies on any purchase contract or otherwise, provided, however, that written notice of such nonconformity, nondelivery, partial delivery, or late delivery is provided to Seller. Deliveries in excess of those authorized by ProTrade shall be at Seller’s risk of loss, may be returned to Seller or disposed of by ProTrade without any liability to Seller and Seller shall pay ProTrade for all transportation expenses in connection with such deliveries.
  10. Force Majeure. Neither party shall be liable for any delay or failure of performance due to a request for delay by the consumer, strikes, acts of God, or other causes beyond its control, including, but not limited to internet transmission failures, provided that it shall have given notice to the other party of any such cause for delay or anticipated delay promptly following the commencement thereof.  In the event of a delay for any of the foregoing reasons and if requested by ProTrade, Seller shall immediately, upon receipt of the notice from ProTrade, hold up delivery until further notice from ProTrade, regardless of whether such hold extends beyond any delivery date specified in this Contract.  Upon receiving further notice from ProTrade, Seller shall promptly make delivery of the Material specified in this Contract.  ProTrade and Seller agree that any setoff transactions between ProTrade and Seller shall be governed by Ohio law.
  11. Seller’s Representations and Warranties. Seller represents and warrants that the Material to be delivered by Seller conforms to the description of the Material on the face of this Contract and that the Material does not contain any nonconforming or foreign substances.  Seller shall indemnify and save harmless ProTrade and the consumers of this Material from and against any and all claims, demands, causes of action, actions, liabilities, losses, damages and expenses, including attorneys’ fees (including without limitation actual, general and special damages for injuries or damage to any person or property) arising out of the failure of the Material to conform to the description on the face hereof, or arising out of the presence of nonconforming or foreign substances in any Material.
  12. Hazardous Substance. Notwithstanding any other warranty or limitation of warranty herein, Seller warrants that the Material to be delivered under this Contract does not contain any “hazardous substance,” as that term is defined in §101 (14) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §6901 (14), except those “hazardous substances” which are integral constituents of the metallic fraction of the Material.  Seller further warrants that the Material contains no radionuclides or radioactive materials.  Seller will indemnify and hold ProTrade and its customers harmless from any and all claims, demands, causes of action, actions, liabilities, losses, damages and expenses, including attorneys’ fees, resulting in whole or in part from a breach of the foregoing warranties.  If the Material is rejected because of the presence of hazardous substances, radionuclides, or radioactive materials, ProTrade shall have no responsibility for or title to the rejected Material.  Seller shall have sole responsibility for, and shall ensure, proper management of the Material to prevent any release or threat of release of any such hazardous substances, radionuclides, or radioactive materials to the environment.  Unless Seller makes other arrangements, Seller shall return all such rejected Material to its point of origin at Seller’s expense.  If Seller refuses to remove the rejected Material, ProTrade may return it to its point of origin at Seller’s expense, or may otherwise manage the Material and arrange for its disposal at Seller’s expense.  Seller agrees to assume any and all liability for such shipment or management, and any and all liability resulting from the return or disposal of the rejected Material.
  13. Seller’s Ability to Cancel. Subject to (i) the effect of any applicable bankruptcy, insolvency or similar law affecting creditors’  rights generally, and (ii) the effect of general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, if Seller becomes insolvent or has a business failure or commits an act of bankruptcy, or is adjudicated bankrupt or if at any time ProTrade reasonably believes that Seller may fail to perform for one of the above reasons, or if Seller has failed to perform completely any other contract with ProTrade, then ProTrade may cancel this Contract without liability.
  14. Assignment. No assignment of this Contract shall be made without prior written consent of the other party.
  15. Waiver. ProTrade’s failure to require Seller’s performance of any obligations hereunder shall in no way affect its rights to require such performance at any time thereafter.
  16. Severability. The invalidity and unenforceability of any term of this Contract shall not affect the validity and enforceability of the remainder of this Contract or any of its other terms, and such other terms shall be construed as though such invalid or unenforceable term was not included herein.
  17. Governing Law; Jurisdiction. This Contract shall be governed by, and construed and enforced in accordance with the laws of the State of Ohio, without giving effect to the conflict of law rules thereof. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this contract.  All parties hereby submit and consent to the venue and the jurisdiction of the Courts of the State of Ohio. Under no circumstances shall ProTrade be subjected to the jurisdiction of foreign courts without its prior written consent.
  18. Amendment. No waiver, alteration or modification of the terms of this contract as herein set forth, nor any understanding or agreements not set forth herein shall be valid and binding upon ProTrade unless made in writing and signed by a duly authorized representative of ProTrade. Notwithstanding the foregoing, ProTrade may make any changes to these Terms and Conditions without the consent of Buyer by emailing, mailing, or posting the updated terms and conditions on ProTrade’s website. ProTrade will use commercially reasonable means to inform Buyer of any such changes to the Terms and Conditions.