OMNISOURCE
CORPORATION
SALES CONTRACT
TERMS AND CONDITIONS OF SALE
1. Controlling Terms and Conditions. This document is a confirmation of a verbal agreement between the parties for the sale of goods on the terms and conditions set forth herein. If any provision of this Sales Contract does not conform to Seller’s understanding of the existing agreement, Seller must notify Purchaser immediately and provide Purchaser with a written objection within ten days of Seller’s receipt hereof. Seller’s failure to return a signed copy of this Sales Contract or object to its contents will not absolve it from liability under this Contract.
Seller agrees to sell to Purchaser only on the express condition that Purchaser, if it has not already done so, agrees to the exact terms and conditions set forth both on the face of this Sales Contract and on this reverse side hereof and no other terms and conditions as proposed or may be proposed by Purchaser. Seller objects to and is not bound by any term or condition on Purchaser’s offer, expression of acceptance, confirmation or any other communication which is different from, inconsistent with, or in addition to Seller’s terms and conditions and any such terms and conditions proposed by Purchaser are hereby expressly rejected.
Seller’s shipments shall not constitute acceptance of any provision of Purchaser’s offer, expression of acceptance, confirmation or any other communication from Purchaser to Seller which is different from, inconsistent with or in addition to the terms and conditions of this Sales Contract. Any confirmatory action by Purchaser hereunder, or any acceptance of the materials described or referred to herein shall constitute assent to the terms and conditions hereof, regardless of Purchaser’s acknowledgment hereof, and a representation that the Purchaser is solvent.
2. Inspection and Acceptance. Purchaser shall inspect material delivered hereunder within TWENTY-FOUR (24) HOURS after delivery of such material to its shipping destination. Purchaser shall notify Seller promptly of any claimed failure of the material to conform to the specifications or grade described herein and shall allow Seller a reasonable opportunity to inspect such material to enable Seller to verify the alleged nonconformity and upon such verification determine whether to issue transshipment instructions, order a replacement shipment (if practicable) , or seek an adjustment with Purchaser. Purchaser’s failure to promptly notify Seller of any alleged nonconformity of the material delivered hereunder, or any commingling of such material shall constitute an acknowledgment by Purchaser that the material delivered hereunder conforms to the specifications and grade described herein, and shall constitute an immediate and irrevocable acceptance of such materials by Purchaser. In the event Purchaser refuses to receive materials delivered hereunder, Seller may exercise any or all of the remedies afforded to Seller by the Uniform Commercial Code. Seller shall have no obligation to hold or resell such materials for Purchaser’s account.
3. Representation of Solvency. Purchaser represents that by placing its order it hereby acknowledges that it is not insolvent as that term is defined in the Uniform Commercial Code. In the event that Purchaser becomes insolvent before delivery of materials, it will notify Seller. Failure to notify Seller shall constitute a written reaffirmation of Purchaser’s solvency at the time of delivery.
4. Warranty. Seller warrants that the materials delivered hereunder shall conform to the specifications or grade described herein. Seller makes NO OTHER WARRANITES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. In the event the material delivered hereunder fails to conform to the specifications or grade described herein, Seller shall, at its option, issue transshipment instructions, order a replacement shipment (if practicable), or seek an adjustment with Purchaser.
Notwithstanding the above warranty, all delivered material shall be subject to variations in composition, properties and quality, consistent with usages in the trade and standard testing and inspection methods, together with a five percent (5%) weight tolerance for all overshipments or undershipments unless a different tolerance is set forth on the face of this Contract.
5. Purchaser’s Remedies. The remedies of issuing transshipment instructions, ordering replacement shipments where practicable or seeking adjustments with Purchaser are the sole and exclusive remedies afforded for failure of the materials delivered hereunder to conform to the specifications or grade described herein. Under no circumstances shall Seller be liable to Purchaser for any special, consequential or incidental damages.
6. Delivery and Force Majeure. Seller may recover for each partial shipment hereunder as a separate transaction, without reference to any other shipment contemplated as part of this Contract. Seller shall not be liable for any delay in or failure to make one or more deliveries hereunder, when due, if such delay or failure is due to any cause beyond the reasonable control of Seller, such as, but not limited to, acts of God, strikes or other labor differences, wars, blockades, embargoes, navigational hazards, epidemics or natural disasters, civil disturbances, explosion, breakage of, or accident to machinery, restriction or unavailability of transportation facilities or fuel, compliance with any law, order, directive, or regulation of government, or any other cause beyond Seller’s reasonable control. In the event of the occurrence of any of the foregoing, Seller may distribute its available material among its customers on such a basis as Seller shall deem fair and equitable, without liability to Purchaser.
7. Transportation, Payment and Default. If Purchaser requires a means of transportation other than that selected by Seller, any extra costs incurred by reason of using such other means shall be borne by Purchaser. All amounts payable hereunder shall be paid in cash or in negotiable paper collectible at its face value in United States funds at the location indicated on Seller’s invoice. Purchaser agrees to pay interest on all past due amounts at a rate equal to the maximum rate allowed under applicable law or one hundred twenty-five percent (125%) of the Prime Rate published in the Wall Street Journal’s Money Rates table, whichever is lower and further agrees to pay all costs of collection, including reasonable attorney fees.
8. Environmental Representations and Indemnification. Purchaser hereby represents that (i) a substantial portion of the material will be made available for use as a feedstock for the manufacturer of a new saleable product, (ii) the material is a replacement or substitute for a virgin raw material, or the product to be made from the material is a replacement or substitute for a product made, in whole or in part, from a virgin raw material; (iii) any facility, including those of any subsequent transferee, where the material will be handled, processed, reclaimed, or otherwise managed will be in compliance with substantive (not procedural or administrative) provisions of any federal, state or local environmental law or regulation, or compliance order or decree issued pursuant thereto, applicable to the handling, processing, reclamation, storage or other management activities associated with recycled materials; and (iv) Purchaser and its customers will otherwise comply with all federal, state or local environmental laws and/or regulations. Purchaser agrees to defend, indemnify and hold Seller harmless from and against any and all liabilities or expenses incurred, directly or indirectly, by Purchaser arising out of or in connection with a breach of the foregoing environmental representations.
9. Assignment. This contract, or any interest herein, is not assignable in whole or in part by Purchaser, without the prior written consent of Seller.
10. Waiver of Terms and Conditions. The failure of Seller in any one or more instances to insist upon performance of any of the terms and conditions contained herein, or to exercise any right or privilege hereunder, shall not be construed as a waiver of any Seller’s rights or privileges hereunder.
11. Setoff. Purchaser shall not be entitled to setoff any amount owed by Purchaser in connection with this Contract against any amount owed to Purchaser by any division, subsidiary, or affiliate of Seller other than the division which entered into this Contract.
12. Interpretation and Forum. This Contract constitutes the entire agreement between Seller and Purchaser with respect to the materials described herein and supersedes any prior or other agreements, written or oral, between the parties. No amendment, modification, waiver or release of any provision hereof is binding upon Seller without a writing signed by Seller’s authorized representative.
This Contract shall be construed as a contract made in the State of Indiana and shall be governed by the laws of the State of Indiana. Any action or suit initiated by Purchaser relating in any way to this Contract must be brought in a federal or state court located in Allen County, Indiana. Purchaser hereby consents to the jurisdiction of the courts in the State of Indiana.