METFAB TERMS & CONDITIONS OF SALE
Metfab Metals, LLC
Standard Terms of Sale
[These are produced here solely for informational
purposes and to illustrate the general sales terms
presently in effect. Any and all of these terms are
open to discussion and negotiation for your particular
projects/jobs, as needed. Such additional/amended
terms must then be reduced to writing in order to
become a further and binding term of our Agreement.]
Notwithstanding the plans & specifications for
the subject project/job, this sale and all deliveries/change
orders hereunder are subject to these standard terms
of sale for all transactions by Metfab Metals, LLC
(hereinafter “MMLLC”) and supersede, take
precedence over and control any other writing or oral
understanding, for the items sold/scope of work, any
earlier contract term set forth in any related purchase
order, correspondence, delivery receipt, packing slip
or any other document exchanged:
(1) Parties: MMLLC is the “Seller” hereunder
and you are the “Buyer” referenced in
the contract documents;
(2) MMLLC as “Supplier” Only: For any
and all purposes, MMLLC shall in all regards be deemed
only a “supplier”, and not in any way
a sub-contractor to the Buyer or any other party to
this contract or any job to which the parts/products
are shipped or designated. In the event Buyer seeks
any other service/products from MMLLC and MMLLC is
to be designated as anything other than a supplier,
such designation and the reasons therefore shall be
set forth in a further writing, signed by MMLLC.
(3) Initial Obligations: All parts/products will be
fabricated substantially as indicated in the plans,
insofar as there is no conflict between the plans
and specifications and/or any modification/change
order submitted to or by MMLLC. Insofar as practicable
and as communicated to MMLLC, MMLLC will fabricate
all parts/products in conformance to the most recent
change properly submitted to, and received by MMLLC.
In the event of a change order, not in writing, any
and all risk of non-conforming goods shall be solely
the Buyer’s. Any variance between/among the
contract documents will be resolved between/among
the parties in the most expeditious fashion reasonably
available, but will necessarily and correlatively
extend, without penalty to MMLLC, any set time of
delivery/completion;
(4) Change Orders: A change order is an addition to
a contract, usually due to an unforeseen fact, not
contemplated by the Plans and Specifications. A change
order modifies the scope of work in the original contract.
Any and all change orders/modifications of the original
contract documents will be promptly submitted in writing
to MMLLC and will only become binding when they are
counter-signed by an authorized representative of
MMLLC. MMLLC will be paid for all fabricated parts/products
whether or not they are any longer needed under such
amended Contract documents;
(5) Authorized Representative: Buyer will designate
in writing to MMLLC, at the execution of the contract
documents, an authorized representative for each project/job
and he/she shall fully bind Buyer on all issues presented;
(6) Additional Documents: MMLLC is not responsible
for the cost of/provision of any additional contract
documents, unless it explicitly so agrees in writing,
at an agreed-upon cost to the Buyer herein;
(7) Charges: All taxes, governmental charges, levies,
excises or supplementary fees/costs of any type whatsoever
are the sole responsibility of the Buyer, unless explicitly
agreed otherwise in writing.
(8) Shipping: All trucking, transportation, or other
shipping charges are the sole responsibility of the
Buyer, and not the responsibility of MMLLC, unless
explicitly otherwise in writing.
(9) Invoices: MMLLC will issue an invoice for all
parts/products fabricated, upon the completion of
fabrication and forthwith deliver such invoice to
the Buyer. Such invoice incorporates by reference
all the terms of sale set forth herein and Buyer agrees
to be bound by these, as if set forth at length on
the invoice.
(10) Start Date: MMLLC will only commence fabrication
on the later of the following: (a) the date set forth
in the contract documents or (b) the date on which
MMLLC receives all fully-executed Contract documents,
including a fully-executed and approved PURCHASE ORDER
and appropriate credit approvals.
(11) Non-Conforming Goods: In the event The Buyer
deems the parts/products sold hereunder by MMLLC to
be "non-conforming” in any respect, Buyer
shall immediately notify MMLLC to this effect, identity
all specifics and aspects of such non-conformance
and give MM a reasonable opportunity to “cure”
and/or replace the non-conforming parts/products,
all without further penalty or charge of any kind.
In no event will MM be liable for any costs incurred
by Buyer in seeking “cover” or the replacement
of such parts/products, unless and until MMLLC is
given such timely notice and a reasonable opportunity
to “cure” any confirmed non-conformance
or replace any non-conforming parts/products.
(12) Terms of payment: Payment of all sums invoiced
by MMLLC to the Buyer shall be made, in full, within
thirty (30) days of the date of each such invoice.
In the event, payment in full is not received by MMLLC
within this thirty (30) day period, payment shall
be deemed, for all purposes “late” and
a service charge of two percent (2%) of the total
sum due shall accrue, and be due and owing to MMLLC,
for each thirty (30) days thereafter, or any part
thereof, until all sums due are paid in full. MMLLC
shall retain a security interest in all parts/products
shipped until payment in full is received. Buyer agrees
to cooperate and execute any required documents for
the perfection of MMLLC’s security interest.
In the event any sum is past-due and outstanding from
the Buyer under the agreed terms of payment, MMLLC
reserves the right to suspend all further contract
work and/or fabrication until all sums due are paid
in full.
(13) Credit: MMLLC is hereby granted the right to
check fully into the credit standing of the Buyer
and to take all reasonable steps of inquiry to do
so. In the event MMLLC is not satisfied, in any respect,
with the credit-worthiness of the Buyer, MMLLC shall
have the right to require payment in advance, or such
security for payment, as MMLLC in it sole discretion
deems warranted in the circumstances.
(14) Offsets and Exceptions: Buyer shall offset against
MMLLC only those back charges specifically authorized
in contract documents and only after communicating
in writing, at least ten (10) days in advance, its
intention to do so to MMLLC. MMLLC shall not be back-charged
for failure to comply with dates of delivery/other
provisions in the contract documents caused by weather,
actions of third parties, untimely delivery and/or
non-delivery by any carrier, Acts of God and or other
causes, not reasonably anticipated and/or beyond the
control of MMLLC. In the event Buyer fails to assert
a right to either back-charge or offset a claim against
MMLLC within ten (10) days of the passing of title
or actual receipt of the subject parts/products (whichever
is earlier in time), Buyer shall be deeded to have
irrevocably waived such claim, offset or right to
such and will not assert any such thereafter, directly
or indirectly. In no event will MMLLC be liable for
any sum in excess of the contact amount for each individual
order for parts/products from MMLLC.
(15) Limitation of Liability: In no event shall MMLLC
be liable for any sum beyond the full value of the
subject contract.
(16) No Consequential Damages: In no event shall MMLLC
be liable for any consequential damages alleged or
sought by the Buyer. MMLLC disclaims, and will not
be liable for, damages for project delays, loss of
use, loss of profits or other damages arising out
of the supply, or failure to do so, of the parts/products
produced by MMLLC. MMLLC will not be liable in contract
or tort for any incidental, consequential, special
or indirect damages arising out of the supply or use
of the parts/products supplied.
(17) Indemnification: Buyer shall indemnify, defend
and hold MMLLC harmless from and against any and all
damages, liabilities and losses of any kind whatsoever.
Including without limitation attorney’s fees,
arising out of or in connection with the use by the
Buyer of the parts/products supplied and any claims
made by any third parties related to such use.
(18) Compliance with laws: Buyer will comply with
al applicable laws regarding the purchase and use
of the parts/products and agrees to maintain all and
pay for all required governmental permits, licenses
and approvals for the use of these parts/products.
If required, Buyer will comply with any United States
laws applicable to the use, sale or re-sale of these
parts/products.
(19) Confidential Information: Buyer will not disclose
to any person or entity any information or data marked
as confidential or proprietary information. Buyer
will not re-copy, use or otherwise appropriate to
its own use any process, information or design learned
in the course of this contract work. Buyer recognizes
that the unauthorized use or disclosure of such would
cause MMLLC irreparable damage and leave MMLLC with
no adequate remedy at law. Buyer agrees that MMLLC
shall have the right to injunctive relief for any
breach of this agreement, in addition to any other
rights and remedies available to it. The obligations
of confidentiality will expressly survive final payment
to MMLLC.
(20) Arbitration: The parties agree that any and all
disputes as to the moneys owed, parts/ products ordered
or supplied, due dates or any other point agreed hereunder
shall be resolved solely by the sole means of arbitration
in a form and manner agreed to between/among the Parties.
Such arbitration shall commenced by one of the parties
hereto giving notice in the usual form (with all essential
details set forth) to the all other parties and designating
an arbitrator. The other party shall then name a second
arbitrator. The two named arbitrators shall then designate
a third arbitrator. The three arbitrators will then
proceed to administer and decide the issues presented.
All such proceedings shall be carried out solely here
in New Jersey and any award thereon shall be enforced
or set aside solely here in New Jersey, pursuant to
New Jersey’s law and statutes. The prevailing
party shall pay all fees and costs of that proceeding,
unless otherwise agreed.
(21) Notices: All notices called for herein or in
the Contract documents shall be mailed to MMLLC at:
560 Freeman Street, Orange, NJ 07050. In the event
these contract documents have provided for such notice
by fax and/or email and set forth current fax numbers/email
addresses, such may be used along with ordinary mail.
(22) Time: Any change order/modification of the contract
documents shall, by that act alone, extend MMLLC’s
time of delivery/completion date, for such period
of time reasonable required to fabricate/manufacture
the parts/products called for;
(23) Intellectual Property Ownership: MMLLC shall
be, and shall under all conditions remain, the sole
owner of all intellectual property (whether copyright,
patent, trademark, trade secret or otherwise) in the
parts/products, items, designs, concepts and ideas
fabricated, originated, or created in whole or in
part by MMLLC. Buyer shall have no rights in these
except as may be licensed in a further agreement.
This Sale shall not constitute a license to any degree
whatsoever for or to the Buyer to use, replicate,
duplicate or appropriate the intellectual property
in the products sold and/or their design.
(24) Passing/Transfer of Title: Unless MMLLC hereafter
agrees, in writing, to deliver the parts/products
called for herein (or any individual constituent part(s)
ordered) directly to the Buyer (or to its designated
jobsite or other third party), title to all parts/products
will pass to the Buyer upon the loading of the subject
parts/products onto the means of shipment/delivery
chosen (either by Buyer or MMLLC), e.g., onto a common
carrier or other truck, vehicle, container or the
like selected for delivery. . If, however, , MMLLC
agrees in writing to use its own vehicles to deliver
the subject parts/products, title will then immediately
pass upon the unloading of the parts/products from
the MMLLC vehicle.
(25) Rick of Loss: In line with the above paragraph
(“Title”), the risk of loss shall irrevocably
pass upon the passing of title to the Buyer. Neither
MMLLC nor its insurer(s) shall be liable thereafter
in any manner for the subject parts/products, damage
or loss thereof, damage or injury arising out of their
use, shipment or movement. All such liability or risk
shall be deemed to be assumed by the Buyer upon taking
title, notwithstanding anything else stated herein,
in other communications or in any insuring document/policy.
(26) Returns: In no event will the Buyer have a right
to return for credit any parts/products shipped, without
the prior written consent of MMLLC.
(27) Warranties: MMLLC represent and warrant that
it has the right, title and authority to sell these
parts/products as set forth. Beyond that, MMLLC extends
no warranties whatsoever, except as may be provided
by the law of the State of New Jersey. No agent, employee
or other representative of MMLLC has the authority/right
to extend or give any warranties beyond those stated
herein. MMLLC disclaims all implied warranties of
merchantability and fitness for a particular purpose.
MMLLC does not warrant, guarantee or make any representations
regarding the use or the results of the use of the
parts/products supplied.
(28) Successors: This agreement shall inure to the
benefit of, and be binding upon, the Parties and their
respective successors, assigns, heirs and representatives,
as the case may be.
(29) Titles and Captions: The section or paragraph
tiles/captions contained herein are for convenience
only and shall not be deemed a determinative part
of this document.
(30) Entire Agreement: This agreement constitutes
the entire agreement between the parties hereto relating
to this Sale and all prior agreements between the
parties with respect thereto are merged into and superseded
by this agreement.
(31) Modification and Waiver: Any of the terms and
conditions of this agreement may be waived only in
writing by the Party entitled to the benefits thereof.
No waiver of any provisions of this agreement shall
be deemed to or constitute a waiver of any other provision.
(32) Amendment: No change, amendment or modification
of this agreement shall be valid unless the same shall
be in writing and signed by the Party or Parties sought
to be charged.
(33) Counterparts: This agreement may be executed
in counterparts, each of which shall be deemed an
original and all of which constitute together the
same instrument/document.
(34) Governing Law: This agreement shall be construed
in accordance with and governed by the laws of the
state of New Jersey only. The Parties hereby consent
to this and consent also to service of process, personal
jurisdiction and venue exclusively in the state and
federal courts of New Jersey and Essex County. And
they hereby select such courts as the exclusive forum
with respect to any action or proceeding brought to
enforce any arbitration award hereunder or other legal
liability or obligation under this agreement.
(35) Construction: The language used in this agreement
will be deemed to be the intentional language chosen
by the Parties hereto in order to express their singular
and mutual intent and no prior agreements shall be
deemed to supersede this agreement.
(36) Severability: If any provision hereof shall be
held by any court of competent jurisdiction to be
illegal, void or unenforceable, such provision shall
be of no force or effect, but such holding shall have
no effect upon and shall not impair the enforceability
of any other provision of this agreement.
(37) Acknowledgement: The parties acknowledge that
they have read and understand this agreement and that
they have consulted with their counsel of choice on
any issue about which they had any question. They
understand the practical and legal effect of all the
terms of this agreement before they entered into it.
And they are signing this voluntarily and without
duress and fully intend to be bound by all the terms
hereof.
______________________ _______________________ ___________
Witness Buyer Date
______________________ _______________________ ___________
Witness MMLLC Date
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