Terms & Conditions
Purchase Order Terms and Condtions
NELSEN STEEL AND WIRE, L.P.
ACCEPTANCE. Nelsen Steel and Wire, L.P.(“Nelsen”) expressly limits acceptance to the terms of this offer. Seller will be deemed to have accepted all of the terms of this Order by immediately signing and returning written acknowledgement and acceptance of this Order without deviation from its terms, and either shipping any of the goods and so notifying Nelsen or, beginning to perform the work requested in this Order and notifying Nelsen that such work has begun. Nelsen herby objects to any term contained in a responding document sent by the Seller if the term is different from or in addition to the terms of this Order. Any difference or addition will be treated as a proposal for modification of the contract. Notwithstanding any condition contained in a responding document, such a proposal will not become part of the contract unless expressly agreed to by Nelsen in writing and in the event of a conflict, the terms herein shall Govern.
FORCE MAJEURE/DELIVERY. Note delivery date requested. Time is of the essence. Seller agrees that delivery will be made on or before the date specified on this Order. Seller further agrees to notify Nelsen in writing within five days from the beginning of any strike, fire, flood, act of God, act of the government or any other unforeseeable occurrences which may cause delay in delivery. In the event of such occurrence Nelsen may, if we do so desire, terminate this Order, and upon termination Nelsen shall be liable only for the contract price of goods ordered and delivered by the specified delivery date and accepted by Nelsen as satisfactory. In the event Nelsen chooses not to terminate, despite a delay in delivery, Seller agrees to make delivery as soon as commercially feasible at the prices and conditions stated on this Order at times mutually agreed upon in writing. Nelsen reserves the right, however, to postpone for a reasonable time, shipment by the Seller, and in the event of such postponement the specified delivery date requested shall be correspondingly extended.
NON-CONFORMING SHIPMENT OR MERCHANDISE. Nelsen shall have the right, after inspection at the specified destination, to reject all or any part of any shipment or merchandise that does not conform to this Order in quality, quantity, identity, date of delivery, or otherwise, but acceptance of any non-conforming shipment or merchandise shall not impair any rights or remedies available to Nelsen or its customers in law or equity for breach of contract. Rejection of a portion of the goods shall not preclude subsequent rejection of the remainder, in whole or in part. Seller shall reimburse Nelsen for all expenses incurred in unpacking, inspecting, repacking, storing, and reshipping any goods so rejected at Nelsen’s option by refund, credit or set-off. In addition, any merchandise that Nelsen or its customers shall find through service, inspection, use, or otherwise, to be defective in material or workmanship or not in conformity with this Order may at Nelsen’s option be returned to Seller at Seller’s expense and risk for full refund, credit, or replacement as Nelsen shall determine, or held at Seller’s expense and risk for Seller’s instructions.
PRICING. All prices stated on this Order are firm and are not subject to escalation. Exceptions to the prices stated on this Order are to be made immediately. Otherwise the stated price shall be the agreed upon price between Nelsen and Seller.
WARRANTIES. In addition to Seller’s customary warranties, any express warranties, and any other warranties contained herein or implied by law, Seller warrants that the goods will conform to specifications, certifications of test results, drawings, samples, or other descriptions that Nelsen or Seller have furnished or specified, and will be merchantable, of high quality, and free from defects in design, material, and workmanship. If Seller knows or has reason to know the particular purpose for which Nelsen intends to use the goods, Seller warrants that such goods will be fit for such particular purpose. All warranties shall survive inspection, acceptance, use, and payment and shall be for the benefit of Nelsen and its successors, assigns, and customers. Nelsen’s extension of express or implied warranties to its successors, assigns, or customers shall not limit Seller’s warranties in any way. Seller further warrants that all materials supplied hereunder are free and clear of all liens and encumbrances, that Seller has good and marketable title to same, and will indemnify, defend and hold Nelsen harmless against any and all claims against the materials ordered herein. All warranties and service guarantees shall run both to Nelsen and to its customers. All warranties shall additionally be construed as conditions as well as warranties and shall not be deemed exclusive. Seller shall furnish Nelsen copies of all of Seller’s standard warranty and service guarantees, as applicable, and shall pass any warranty benefits to Nelsen that Seller receives from its suppliers pertaining to the materials ordered hereunder.
QUALITY PROGRAM. Nelsen or its designated agent or any governmental agencies or customers of Nelsen reserve the right to visit your facilities and audit or survey your quality program, or to inspect at any stage in the process of fabrication or manufacture any goods no matter where located made to Seller’s or Nelsen’s specifications or to inspect and review for compliance with applicable governmental regulations.
TOOLS, MATERIAL AND DRAWINGS. Any material or tooling that Nelsen has furnished or may furnish Seller without charge in connection with this Order shall remain Nelsen’s property subject to recall at any time. Seller agrees to keep such material fully insured for Nelsen’s benefit against loss or damage of any kind and to reimburse Nelsen for any such material that is spoiled or lost or damaged while in Seller’s possession. All blueprints, specifications, plans or designs furnished to Seller by Nelsen are confidential and Seller shall not furnish them to anyone else without Nelsen’s written consent. Seller shall clearly designate all such tools, materials, drawings, etc., as the property of Nelsen.
PAYMENT. Payment for material on this Order shall not constitute an acceptance thereof, but all material shall be received subject to Nelsen’s inspection and rejection in accordance with the terms herein. Payment shall be made as stated on this Order unless otherwise specifically arranged for and stated on this Order, or in the event that merchandise has not been received, Nelsen reserves the right to withhold payment until merchandise has been received and checked and does not waive the right to deduct the cash discount. When invoices subject to discount are not mailed on the date of shipment, discount period will begin on the date invoices are received in Nelsen’s office. Nelsen’s count will be accepted as final on all shipments not accompanied by packing list. Payment of this Order will be subject to deduction of any valid claim against Seller arising from this or any other transaction.
PATENT AND TRADEMARK PROTECTION. To the extent that the articles or materials delivered hereunder are not manufactured or delivered pursuant to design originated by Nelsen or pursuant to a Nelsen directed process, Seller guarantees that the sale or use of any or all articles or materials delivered hereunder or processes used will not infringe on any patent, trademark, or copyright and agrees that Seller will save Nelsen and its successive customers harmless and indemnify Nelsen and its successive customers against all claims, losses, liabilities, and damages to defend Nelsen and its successive customers against all claims and legal actions and to pay all claims, judgments, awards, costs, and expenses, including attorneys’ fees, which Nelsen may incur or become liable to pay, under the patent laws of the United States or other countries resulting from the use of any goods purchased hereunder or by reason of trademark or copyright infringement arising out of the sale, cataloging, marketing, packaging, or advertisement of the merchandise furnished by Seller on account of infringement or alleged infringement of any patent, trademark, or copyright with respect to such articles, materials, or processes and that Seller will, at its own expense, in the event any and all portion of the goods purchased hereunder are held to constitute an infringement and the uses enjoined, procure for Nelsen the right to continue using said goods royalty free or replace same to Nelsen’s satisfaction with noninfringing goods of equal quality and performance. In the event this Purchase Order covers materials, machinery, equipment and/or manufacturing apparatus, the development or design of which is the concept or is paid for or suggested by Nelsen, all patent rights incident thereto shall automatically become the exclusive property of Nelsen, and Seller shall cooperate with Nelsen in obtaining all such patent rights for Nelsen. Nelsen shall have no obligation to deal with Seller in connection with the repair or replacement of any patented or unpatented element incorporated in any goods purchased hereunder. However, nothing contained herein shall prevent Nelsen and its successor’s customer to participate in the defense of any action for copyright, patent, or trademark infringement.
TERMINATION. Nelsen may terminate such work under this Purchase Order in whole, or in part, at any time by written or telegraphic or facsimile notice to Seller; and upon such termination in whole or in part of such work under this Purchase Order, Seller will stop work immediately, notify sub-contractors to stop work, and protect property in Seller’s possession in which Nelsen has or may acquire an interest. Except where such termination is occasioned by a default or delay of Seller, other than one due to causes beyond Seller’s control and without Seller’s fault or negligence, Seller may claim reimbursement on forms which Nelsen will furnish on request for Seller’s actual costs incurred up to and including the date of termination which are properly allocable to the apportionable under recognized accounting practices to the terminated portion of the Purchase Order, including liabilities to sub-contractors which are so allocable and acceptable finished units at contract price not previously billed or paid for, but excluding any charge for interest or any materials which Seller may be able to divert to other Orders. Seller may also claim a reasonable profit on the work actually done by Seller prior to such termination, the rate of which shall not exceed the rate used in establishing the original Purchase Order price. The total of such claims shall not, however, exceed the canceled commitment value of this Purchase Order.
INSURANCE, RISK OF LOSS, AND INDEMNIFICATION. (a) Whenever Seller shall, by virtue hereof, have in its possession materials, tooling, models, patents, drawings, and other personal property belonging to Nelsen or furnished by Nelsen to Seller or otherwise in Seller’s custody or possession, Seller shall be deemed to insure same and shall be responsible for its safe return to Nelsen. Seller shall maintain at all times during the performance of said work adequate workmen’s compensation insurance to cover all of its general and special employees engaged in such work and insurance to insure against any claims for injury or death of persons or destruction or damage of property (including Nelsen’s employees and property) which may arise from Seller’s actions or omissions in the performance of said work by Seller. Such insurance shall specifically include contractual liability coverage. In the event Seller is required to enter the premises owned, leased, occupied, or under the control of Nelsen for the performance of services ordered hereunder or during delivery or installation of materials or articles by Seller, Seller shall obtain and present to Nelsen, prior to the performance of said services, a certificate of insurance from an insurance company acceptable to Nelsen evidencing coverage for general liability and workmen’s compensation in amounts satisfactory to Nelsen. (b) Seller shall maintain at its expense product liability insurance with a broad form vendors endorsement, under which Nelsen shall qualify as being covered. (c) Seller shall maintain public liability insurance in adequate amounts. (d) Upon request of Nelsen, Seller shall furnish evidence of all the aforementioned insurance coverage. (e) Unless otherwise provided in this Order, Seller shall have title to and bear the risk of any loss or damage to the items purchased hereunder until they are delivered in conformity with this Order at the f.o.b. point specified on the face of the Order. Upon such delivery, title shall pass from Seller and Seller’s responsibility for loss or damage shall cease except for loss or damage resulting from Seller’s negligence or failure to comply with this Order. Passing of title upon such delivery shall not constitute acceptance of the items by Nelsen. (f) Notwithstanding anything to the contrary contained in this Order, Seller shall be an independent contractor and agrees to indemnify and hold harmless Nelsen, its officers, directors, and employees from any cost, damage, expense, or other loss or liability, incurred or paid, arising out of or on account of the claims of or suits, whether in law or in equity, which may be asserted or brought against any of the indemnified parties hereunder, for property damage or destruction, breach of contract as a result of performance of the work, products, or the workmanship, or the actions or omissions of the Seller or its employees, agents, or sub-contractor. Seller agrees to pay and/or reimburse Nelsen for any expenditures, including attorneys’ fees and amounts paid in settlement, that Nelsen may make or become liable for in connection with the investigation, settlement, defense, or otherwise by reason of such claims or suits, and if requested in writing by Nelsen, will defend any such suits with counsel acceptable to Nelsen at the sole cost and expense of Seller; Seller agrees to pay and to discharge any judgment, orders, or decrees rendered or entered against any of the indemnified parties for any matter indemnified hereunder; Nelsen may retain any money due or to become due to Seller sufficient to reimburse Nelsen against any such claims, demands, judgments, or liability.
COMPLIANCE WITH LAWS. Seller represents and warrants that in the performance of the work under this Order and in the manufacture of materials requested under this Order, it has complied with and will comply with all applicable federal, state and local laws or ordinances, and all lawful orders, rules and regulations thereunder, including, but not by way of limitation, the Fair Labor Standards Act of 1938, as amended (29 USC §201-219), The Walsh-Healey Public Contracts Act, as amended (41 USC §35-45), the Eight Hour Law of 1912, as amended (40 USC §324-326), the Copeland Anti Kickback Act (41 USC §51-54), Service Contracts Act of 1965 (41 USC §351), the Davis Bacon Act (40 USC §276(a)), Contract Work Hour Standards Act of 1962, as amended (40 USC §327-330), the Occupation Safety and Health Act of 1970, as amended (29 USC §651-678), the Rules and Regulations of the Secretary of Labor issued pursuant to Section 201 of Executive Orders 11246 and 11375, as amended, Rules and Regulations of Secretary of Labor pertaining to equal employment opportunity pursuant to equal opportunity obligations set forth in 41 C.F.R. §60, as amended, and affirmative action clauses set forth in 41 C.F.R. §60-250.4, 741.4, and Executive Order 12086, as amended.
TOXIC SUBSTANCE. The Seller represents and warrants that each and every chemical substance contained in products furnished pursuant to this Purchase Order (or any subsequent modification, renewal or revision thereof) is, at the time of sale, transfer, or delivery on the listed chemical substances compiled and published by the United States Environmental Protection Agency pursuant to Section 8 of the Toxic Substance Control Act (15 USC 2601, et seq.), as amended, and is otherwise manufactured, sold, furnished, transferred, or delivered in compliance with all applicable provisions of such act and the rules and regulations promulgated thereunder and that Seller will defend, indemnify and hold Nelsen and its successors and customers harmless from all claims, costs and attorneys’ fees relating to any such claims.
TAXES. Unless otherwise provided on the face hereof, Seller shall hold Nelsen harmless from the assessment or imposition of any excise, use, or other tax upon the production, sale, delivery, or use of the goods to the extent the assessments or impositions are required or not forbidden by law to be borne by Seller.
SET-OFF. Upon notice to Seller, Nelsen may deduct damages for breach of warranty or of any other provision of this Agreement and any counterclaim from the amount shown as due Seller on any invoice, even if the deduction and the invoice are unrelated to the same sale or series of sales.
INSOLVENCY OF SELLER. If Seller becomes insolvent, or if proceedings in bankruptcy, arrangement, reorganization, or for the appointment of a receiver are filed by or against Seller, or if Seller makes an assignment for the benefit of creditors, or if an attachment or execution against Seller or any of its property is not released within a period of ten days from and after such levy, then this Order shall be cancelled as to any part upon which performance has not been completed, unless Nelsen, within ten days after learning of the occurrence of one of the above events, notifies Seller in writing that Nelsen elects to have this Order continue to its completion.
ASSIGNMENT. No right, interest, or obligation under this Purchase Order may be assigned by Seller without the written permission of Nelsen. Any attempted assignment thereof shall, at Nelsen’s option, be a breach hereof and/or render it voidable at the option of Nelsen. Nelsen’s written permission allowing Seller to make an assignment of payments under this Purchase Order shall be subject to setoff or recruitment for any present or future claim or claims which Nelsen may have against Seller. Seller agrees that Nelsen may assign its rights and/or delegate its duties in whole or in part.
ADVANCE MANUFACTURING AND SHIPMENTS. Seller agrees to deliver material in strict conformance to delivery schedule as it appears on the face of the Order and agrees that Nelsen may return, at Seller’s expense and risk, all material shipped otherwise. If Seller’s delivery fails to meet the schedule specified by Nelsen with the result that Nelsen is compelled to call upon Seller to ship by other than designated routing to expedite delivery, Seller shall assume the difference for the additional cost of transportation. Seller shall not manufacture or order materials in advance of Seller’s required flow time or deliver any materials in advance of a schedule set forth in this Order without Nelsen’s written permission; Seller agrees to notify Nelsen in writing of any potential delay in shipment. Material delivered under this Purchase Order in excess of the amount ordered herein shall be returned to Seller or retained by Nelsen at no cost to Nelsen.
CONFIDENTIAL. The Seller shall not disclose any details connected with this Order to any third party except as may be required to insure performance, except as herein specified, without first obtaining the written consent of Nelsen.
LIMITATION ON NELSEN’S LIABILITY; STATUTE OF LIMITATIONS. In no event shall Nelsen be liable for anticipated profits or for incidental or consequential damages. Nelsen’s liability on any claim of any kind for any loss or damage in connection with this Order or from the performance or breach thereof shall in no case exceed the price allocable to the goods, services, or unit thereof that gives rise to the claim. Nelsen shall not be liable for any penalties. Seller must commence any action resulting from any breach by Nelsen as to the goods delivered hereunder within one year after the cause of action has accrued.
SEVERABILITY. If a court of competent jurisdiction declares or holds invalid or unenforceable any term, clause, or provision of this Agreement, that declaration or holding shall not affect the validity and enforceability of any other term, clause, or provision contained herein.
LAW OF ILLINOIS. The laws of Illinois shall govern this transaction in all respects.
EXCLUSIVE JURISDICTION. Nelsen and Seller hereby agree to the exclusive jurisdiction of any state or federal court located within Cook County, Illinois and not to bring suit against the other party in any other jurisdiction, with respect to any claim or cause of action arising under or relating to this Order, and Nelsen and Seller each waives personal service of any and all process upon it, and consents that all services of process by made by registered mail, directed to it at its address as set forth on this Order, and service so made shall be deemed to be completed when received. The terms set forth herein constitute the sole terms and condition of this contract between Nelsen and the Seller. No other terms, conditions or understandings, whether oral or written, shall be binding upon Nelsen, unless hereafter made in writing and signed by our authorized representative. We specifically object to any different terms in any document or writing prepared or furnished by the Seller.
Invoice – Acknowledgement Terms and Conditions
NELSEN STEEL AND WIRE, L.P.
- Approval of Orders. All orders are subject to approval and acceptance at Seller’s home office in Franklin Park, Illinois.
- Prices. All prices are f.o.b. point of manufacture, unless otherwise specified, and are subject to adjustment, without notice, to Seller’s prices in effect at the time of shipment.
- Terms of Payment. Unless otherwise specified, terms of payment are net cash thirty (30) days from the invoice slate. A discount of one-half of one percent will be allowed if payment is made within ten (10) days from the invoice date, no discount being allowed on transportation charges.
- Tolerances and Variations. All goods shall be subject to tolerances and variations consistent with usual trade practices regarding dimensions, straightness, section, composition, and mechanical properties and normal variations in surface and internal conditions and quality and shall also be subject to deviations from tolerances and variations, consistent with practical testing and inspection methods.
- Delay. Seller shall not be liable for delay or default in shipment for any cause beyond Seller’s reasonable control including, but not limited to, government action, shortage of labor, raw material, production or transportation, facilities, labor difficulty, fire, flood or accident. In the event of any delay in Seller’s performance due in whole or in part to any cause beyond Seller’s reasonable control, Seller shall have such additional time for performance as may be reasonably necessary under the circumstances. Acceptance by Buyer of any goods shall constitute a waiver by Buyer of any claim for damages on account of any delay in delivery of such goods.
- Taxes. All taxes and excises of any nature whatsoever now or hereafter levied by governmental authority upon the sale or transportation of any goods covered hereby shall be paid and borne by Buyer.
- Title and Risk of Loss. Delivery of goods to carrier shall be deemed delivery to Buyer, and thereupon title to such goods and risk of loss or damage, shall be Buyer’s. Any claim by Buyer against Seller for shortage or damage occurring prior to such delivery nest be made within five (5) days after receipt of shipment and accompanied by original transportation bill signed by carrier noting that carrier received goods from Seller in the condition claimed.
- WARRANTIES AND DISCLAIMERS. Seller warrants all goods to be free from detrimental defects in material and workmanship, in accordance with AISI standards which warranty is in lieu of and excludes all other warranties not expressly set forth herein, whether express or implied by operation of law or otherwise, including but not limited to any implied warranties of merchantability or fitness. Seller shall not be liable for consequential loss, damage, or expense, directly or indirectly arising from the sale, handling or use of goods, or from any other cause relating thereto. Seller’s liability hereunder in any case being expressly limited to the replacement (in the form originally shipped) of goods not complying with this agreement, or, at Seller’s election, to the repayment of, or crediting buyer with, an amount equal to the purchase price of such goods, whether such claims are for breach of warranty or negligence. Any claim with reference to goods shall be deemed waived by buyer unless made in writing within ninety (90) days from receipt of the goods to which such claim relates.
- Indemnification and Insurance. Buyer agrees to provide Comprehensive General Product Liability Insurance specifically naming Seller as a co-insured in an amount and with an Insurance Carrier(s) acceptable to Seller. Buyer further agrees that irrespective of insurance Buyer will indemnify and hold Seller harmless from any claims, demands, or lawsuits allegedly arising out of the manufacture, assembly, sale or use of all goods and will employ legal counsel at its expense to represent Seller.
- Suspension of Performance. Seller reserves the right to require payment for any shipment hereunder in advance, or satisfactory security! if the financial responsibility of Buyer becomes unsatisfactory to Seller. If Buyer fails to make payment in accordance with the terms of this agreement, or fails to comply with any provision hereof, Seller may, at: its option, (and in addition to other remedies) cancel any unshipped portion of this order, Buyer to remain liable for all unpaid accounts.
- Cancellation. Goods cannot be returned, and orders once accepted cannot be cancelled, without Seller’s prior written consent.
- Shipment. Seller will use all reasonable efforts to comply with Buyer’s requests as to method of shipment, but Seller reserves the right to use an alternate method of transportation or route of shipment, if substantial delay might otherwise occur. In such cases, Seller will notify Buyer of such changes as soon as reasonably possible, IN ALL EVENTS, BUYER SHALL BE RESPONSIBLE FOR THE METHOD OF LOADING AND SHIPMENT.
- ENTIRE AGREEMENT. THESE TERMS AND CONDITIONS REPRESENT THE ENTIRE AGREEMENT BETWEEN BUYER AND SELLER, AND NO TERMS OR CONDITIONS IN ANY WAY ADDING TO, MODIFYING OR OTHERWISE ALTERING, THE PROVISIONS STATED HEREIN SHALL BIND SELLER UNLESS IN WRITING AND SIGNED AND APPROVED BY AN OFFICER OF SELLER. NO MODIFICATION OF THESE TERMS WILL BE AFFECTED BY SELLER’S SHIPMENT OF GOODS FOLLOWING RECEIPT OF BUYER’S PURCHASE ORDER, SHIPPING REQUEST OR SIMILAR FORMS CONTAINING PRINTED TERMS AND CONDITIONS CONFLICTING OR INCONSISTENT WITH THE TERMS HEREIN. THIS AGREEMENT AND ENTIRE TRANSACTION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS AND ANY DISPUTES OF WHATEVER NATURE OR KIND SHALL BE RESOLVED IN THE CIRCUIT COURT OF COOK COUNTY.