STANDARD TERMS AND CONDITIONS OF SALE
These Standard Terms and Conditions of Sale (these “Terms”) are hereby incorporated by reference into the accompanying Sales Confirmation and/or any other documents confirming the sale (the “Confirmation” and, together with these Terms, the “Contract”) between International Steel & Counterweights LLC or the affiliate thereof designated on the Confirmation (“ISC”) and the buyer designated on the Confirmation (“Buyer”).
The Contract constitutes the entire agreement between ISC and Buyer with respect to the purchase and sale of the products described in the Confirmation (the “Products”) and supersedes all prior agreements and understandings relating thereto. Buyer’s receipt of any Products shall constitute Buyer’s acceptance of these Terms, and any additional or inconsistent terms contained in, or referenced by, any document or communication delivered by Buyer to ISC are hereby rejected and shall not be binding on ISC. No modification or amendment of these Terms shall be binding on ISC unless set forth in a writing signed by an authorized representative of ISC.
ISC represents and warrants that the Products will conform to the specifications of Buyer furnished to, and acknowledged in writing by, ISC (the “Specifications”), provided that variations, including without limitation with respect to composition, properties and quality consistent with industry standards, shall not render any of the Products non-conforming. EXCEPT AS EXPRESSLY SET FORTH IN THE CONTRACT, THE PRODUCTS ARE BEING SOLD “AS IS,” AND ISC DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Unless otherwise specified in the Confirmation, the sale of the Products shall be F.O.B. shipping point, and title to and risk of loss of the Products shall transfer to Buyer at the shipping point.
In the case of sales of commodities, including without limitation steel plates or ballast, Buyer shall report any weight shortage to ISC prior to unloading the Products if such shortage exceeds 2,000 pounds or 2%, whichever is less, for shipments by truck or railcar or 20 gross tons or 2%, whichever is less, for shipments by barge. In the event of any such shortage, Buyer shall provide ISC with a reasonable opportunity to inspect the shipment prior to unloading. Buyer’s failure to notify ISC of a claimed weight shortage within 48 hours of receipt and prior to unloading shall be deemed to be a waiver of any claims therefor, in which case Buyer shall be responsible for paying ISC based on the weights provided by ISC. In the case of sales of commodities, including without limitation steel plates or ballast, Buyer shall accept overshipments and undershipments as long as they do not exceed 10% of the total volume specified in the Confirmation.
If Buyer believes that the Products do not conform to the Specifications, Buyer shall notify ISC in writing of its rejection thereof within 48 hours of receipt. Upon any such rejection, Buyer shall provide ISC with a reasonable opportunity to inspect such Products. Buyer’s failure to notify ISC of a claimed non-conformance within 48 hours of receipt shall be deemed acceptance of the Products and waiver of any claims for non-conformance.
If the Products do not conform to the Specifications, Buyer’s exclusive remedy shall be the replacement of the non-conforming Products with conforming Products from ISC. In the event of litigation with respect to this Agreement, the losing party shall be liable to the prevailing party for all of its costs and expenses relating to such litigation, including without limitation attorneys’ fees and expenses. ISC SHALL NOT BE LIABLE TO BUYER IN ANY EVENT FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES.
All amounts due to ISC pursuant to the Contract shall be paid in U.S. funds in accordance with the payment terms specified in the Confirmation. If the Confirmation does not specify payment terms, the payment terms shall be net 30 days from delivery of the Products. If Buyer fails to make any payment to ISC when due, ISC shall be entitled to (a) charge a late fee at the rate of 1.5% per month of any past due amount or the maximum amount allowable by law, whichever is less, and (b) offset or deduct all or part of such past due amount from any amounts that are due or may become due by ISC or any affiliate thereof to Buyer or any affiliate thereof pursuant to any other agreement or arrangement, regardless of whether such other amount became due, or arose pursuant to an agreement or arrangement, before of after the date of the Contract. Buyer shall pay all costs, including reasonable attorneys’ fees and expenses, incurred by ISC in attempting to collect any amounts due from Buyer.
ISC may re-evaluate Buyer’s credit at any time, including before or after any shipment of the Products or any portion thereof, and revise payment terms, including requiring payment in advance of shipment, for any subsequent shipments of Products if ISC determines in its sole discretion that Buyer’s creditworthiness has deteriorated or that such revised payment terms are otherwise warranted. ISC may recover for each shipment of Products or portion thereof as a separate transaction without reference to any other shipment of Products or portion thereof.
Buyer represents to ISC that it is not insolvent. If Buyer becomes insolvent prior to delivery of all of the Products, Buyer shall immediately notify ISC. If Buyer becomes insolvent, has a business failure, is subject to a voluntary or involuntary bankruptcy proceeding or fails to timely pay ISC or perform any other obligation to ISC, ISC may, in addition to any other rights or remedies available at law, in equity or otherwise, cancel the sale specified in the Confirmation without liability to Buyer (provided that such cancellation shall not affect Buyer’s obligations with respect to any Products shipped pursuant to such Confirmation prior thereto).
ISC shall not be liable for any delay or failure of performance due to strike or labor disturbance, government order or action, act of God (including without limitation weather, natural disaster or epidemic) or other cause beyond its control.
Buyer shall not assign, transfer or subcontract any rights or obligations relating to the Contract, and any such assignment, transfer or subcontract shall be null and void ab initio.
If any provision of the Contract is deemed to be invalid, illegal or unenforceable in any respect, such provision shall be given the maximum permissible force and effect, and the validity, legality and enforceability of the remaining provisions of the Contract shall not be affected thereby.
Governing Law; Jurisdiction; Venue
The Contract shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the choice-of-law principles thereof. Any action or suit initiated by Buyer or relating in any way to the Contract shall be exclusively brought in a federal or state court located in Allegheny County, Pennsylvania. Buyer expressly consents to, and waives any objection to, such jurisdiction and venue.