Sales Terms & Conditions
1. COMPLETE TERMS. Sales of metal and metal products by Central National Gottesman Inc. and its subsidiaries and affiliates, including without limitation Central National Gottesman Trading DR SAS (collectively "CNG" or "Seller"), are governed by these terms and conditions ("Terms"), unless the parties have entered into a mutually executed written agreement stating applicable terms and conditions that specifically provide they are to supersede these Terms. Any offer by CNG is conditioned on Buyer's acceptance of all, and only, these Terms. CNG objects to any different or additional terms, and ACCEPTANCE OF ANY ORDER IS EXPRESSLY MADE CONDITIONAL ON BUYER'S ASSENT TO THESE TERMS. Seller objects to any terms proposed in Customer's proposal, purchase order, acknowledgment or other document which add to, vary from, or conflict with the Terms. Any such proposed terms shall be void and these Terms constitute the complete and exclusive agreement and statement of the terms and conditions between Customer and Seller. These Terms together with any order acknowledgement by CNG (an "Acknowledgement") and CNG's Returns and Claims Policies from time to time available on CNG's website or on request of CNG are the final and complete expression of all terms and conditions of the agreement. Any representations, promises, warranties, or statements that are not contained here are void. These terms and conditions can be modified, waived, or amended only by writing signed by both Buyer and CNG.
2. TERMS OF PAYMENT. Payment is due according to the terms set forth on the invoice, unless the parties agree to other terms. Terms of payment run from date of invoice, not date of shipment or delivery. Payments are to be made at the direction and to the location specified by CNG in an Acknowledgment or otherwise. If Buyer fails to pay any sum owed when due, interest shall accrue to CNG's credit on such sum at the rate of 2% per month or the highest rate allowed by law, whichever is lower. If CNG, in its sole discretion, finds it necessary to employ an attorney to collect any past due sum owed hereunder, it may collect, in addition to any other sum owed hereunder, a reasonable attorney's fee.
3. FINANCIAL RESPONSIBILITY. Any credit terms offered by CNG are available only for so long as Buyer complies with all of its obligations under these Terms, including, without limitation, the provisions requiring timely payment of invoices within stated terms. If at any time and for any reason the financial condition of Buyer shall become unsatisfactory to CNG, CNG may require cash or satisfactory security on shipments or deliveries or otherwise change any previous payment terms, without impairing the obligation of Buyer to take and pay for the quantity of goods ordered. If CNG shall have any doubt at any time as to Buyer's financial responsibility, CNG, at its option, either may (a) decline to make further shipments except upon receipt of cash in advance or upon giving of other security satisfactory to CNG, or (b) terminate any and all pending sales. Buyer's failure to accept delivery of any installment of shipment of merchandise in the qualities and on the terms specified by an Acknowledgment or to fulfill any other provision of an Acknowledgment shall constitute a material breach of the entire transaction, in response to which, in addition to any other remedies hereunder or at law, CNG may in its discretion by written notice to Buyer declare the entire transaction terminated as of the date of the breach, or reduce the installments during the remainder of the term hereof to that quantity last ordered by Buyer. Nothing in this paragraph is intended to affect the obligation of Buyer to accept and pay for the goods. CNG shall retain ownership of the goods sold under a sales contract until the purchase sum has been fully paid.
4. PRICE; NO DEDUCTION. Buyer shall purchase the goods from CNG at the prices (the “Prices”) set forth in the Acknowledgement or the invoice, as applicable. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, customs duties, imposts, fees and charges of any kind imposed by any Governmental Authority. By making a purchase, Buyer specifically agrees to the price stated in the applicable Acknowledgement or Invoice. In the case of sales arranged through cooperatives or purchasing groups Seller may pay a rebate to the cooperative or purchasing group in connection with such sale. Buyer shall not be entitled to deduct from the price invoiced to it by CNG the amount of any claim asserted by Buyer against CNG, unless such claim shall have been allowed, in writing, by CNG.
5. TAXES AND ADDITIONAL CHARGES. All federal, state, local, foreign and other governmental taxes, duties, imposts or other charges imposed upon the manufacture, sale, transportation, importation, delivery and/or use of any merchandise sold to Buyer by CNG are the responsibility of, and shall be paid by, Buyer, and shall be added to the prices provided for in the Acknowledgement for such sale and these Terms.
6. CLAIMS AND RETURNS. CNG MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, EXCEPT THAT ANY MERCHANDISE DELIVERED SHALL BE OF THE MANUFACTURER'S STANDARD QUALITY FOR MERCHANDISE OF SUCH KIND. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FOREGOING AND CNG'S SOLE RESPONSIBILITY HEREUNDER IS AS STATED. CNG SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, LOSS OF VALUE OR LOSS OF USE), WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE, OR FOR ANY AMOUNT IN EXCESS OF THE PRICE FOR THE SHIPMENT INVOLVED, UNDER THE FOREGOING OR ANY OTHER PART OF THESE TERMS, ANY ACKNOWLEDGEMENT OR ANY OTHER AGREEMENT BETWEEN CNG AND BUYER. CNG EXPRESSLY DISCLAIMS ANY IMPLIED OR EXPRESS WARRANTY THAT A FERROUS OR OTHER NON-ALUMINUM PRODUCT WILL NOT SUPPORT RUST OR OTHER DEFECT CAUSED BY ENVIRONMENTAL EXPOSURE.
ON DELIVERY; NOTICE OF CLAIMS; CLAIMS POLICIES. Buyer must immediately upon
receipt of Materials, inspect the Materials to determine whether the correct
type, quantity and package sizes of the Materials have been delivered. Buyer by
acknowledging receipt of Materials is expressly undertaking that they have
inspected the Material and the Materials are in good order. Failure to notify
the Seller of any potential claim will be taken to constitute a waiver of any
such claim that could, but for this clause, have been made against the Seller
unless the Seller’s negligence can be clearly demonstrated at a later date. Written
notice of any claim under this warranty must be given to CNG within thirty (30)
days of discovery of the alleged defect, and not more than sixty (60) days
after delivery of such product, and Buyer must afford CNG a reasonable
opportunity to inspect the goods in unaltered condition and evaluate the
claims. Credit will only be allowed on defective merchandise for which a
claim has been accepted and return of goods has been authorized and returned
within ninety (90) days of the date of delivery, and all returned merchandise
is subject to inspection by CNG. No claim will be allowed by CNG after the
merchandise either has been cut or otherwise altered from its original form. ANY
LEGAL ACTION AGAINST CNG FOR BREACH OF THESE TERMS OF SALE, INCLUDING ANY
WARRANTIES, MUST BE INSTITUTED WITHIN ONE YEAR AFTER DELIVERY OF GOODS. Buyer's
remedies shall be limited to the net value of accepted claim less salvage value
or replacement by CNG of the goods involved at its sole option.
8. DELIVERY, TITLE AND CONTINGENCIES
a. Quantity: CNG shall be entitled to supply plus/minus 15% of the quantity agreed upon, unless the parties have specifically agreed upon a maximum or minimum quantity. The quantity shipped shall be based on the measurements and calculations made in the country of origin and/or shipment unless it can be proved that a material error has been made.
b. Exchange proviso: For goods sold and shipped by CNG in another currency than the one in which the buyer wants the goods to be invoiced, the invoice amount shall be converted at the rate quoted on the day when CNG paid for the goods bought by him. If, in the event of devaluation or revaluation, CNG's supplier refuses delivery of still unshipped goods unless the price is adjusted, this sales contract shall be cancelled unless CNG and Buyer agree upon a new price.
c. Price adjustment: The price agreed upon is based on the freight rates, taxes and dues of any kind, insurance premiums etc. in force as at the date of the sales contract. CNG shall be entitled to adjust the price at any time in conformity with alteration, introduction or revocation of the charges mentioned in this paragraph.
d. Risk: All goods sold F.O.B., C.I.F., C & F., DAP and FREIGHT PREPAID shall be transported at the Buyer's risk, even if the goods have not been separated.
e. Delivery: Shipment shall be subject to freight space being available. CNG reserves the right to route all shipments and may assist Buyer in processing claims against carriers, without incurring liability therefor. Any increase in delivery costs resulting from Buyer's instructions to the carrier and any extra costs of utilizing substitute methods of delivery, when the intended type of carrier or loading or unloading facilities become unavailable, shall be for Buyer's account. Delivery times shall not be regarded as binding and delays in delivery shall not entitled Buyer to claim damages. If for any reason Buyer fails to accept delivery of any purchased Goods within seven (7) calendar days of the date set forth on an Acknowledgement or invoice, or if CNG is unable to deliver the goods by such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations, CNG may either (A) cancel the order or (B) (i) risk of loss or damage to the goods shall pass to Buyer; (ii) the goods shall be deemed to have been delivered and Buyer will be invoiced; and (iii) CNG, at its option, may store the goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, transportation, storage and insurance).
9. FORCE MAJEURE; IMPRACTICABILITY. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached any Acknowledgement or other agreement, for any failure, cancellation, or delay in fulfilling or performing upon any Acknowledgement or other agreement or any term thereof or hereof when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, (including but not limited to adverse trade actions; imposition of tariffs and/or quotas; anti-dumping actions; and actions taken for reasons of national security), war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, or any other cause whether or not similar to the causes listed above, beyond CNG's reasonable control, in each case whether affecting CNG, its suppliers, or any logistics or other service provider to CNG. In the event of any of the foregoing, or if any of the foregoing materially increases the cost to CNG of performance, or if for any other reason performance by CNG becomes impracticable, CNG reserves the right to cancel the affected order without any liability to Buyer whatsoever. In no event shall CNG be obligated to purchase material from others to enable CNG to deliver goods to Buyer hereunder.
10. SPECIFICATIONS; MATERIAL SAFETY DATA SHEET (MSDS). Buyer will familiarize itself with all specifications, information and precautions disclosed in safety and health information, including, but not limited to, any MSDS, transmitted to Buyer by CNG, or any information supplied to Buyer by CNG or otherwise available to Buyer at any time. Buyer is familiar with the specifications of any goods ordered from CNG and acknowledges that the suitability of any goods purchased are completely the responsibility of Buyer.
11. PRODUCT PROTECTION. Building materials must be protected from moisture exposure according to industry customs during transit, storage, and use, including without limitation, transit to, storage at, and use on a jobsite. Metal products are subject to rust and other issues unless properly stored and used.
12. MUTUALITY. Except as provided in Section 4, all debts and obligations of Buyer and CNG to each other are mutual and subject to setoff. For purposes of this paragraph, "Buyer" and "CNG" shall be deemed to include each party's respective subsidiaries and affiliates which directly or indirectly control or are controlled by that party through 100% equity ownership.
13. MISCELLANEOUS. No provision hereof or of any Acknowledgment may be modified, amended or rescinded unless by a written instrument executed by CNG and Buyer. The failure of either party to insist in any one or more instances upon strict performance of any of the provisions of these Terms or any Acknowledgement, or to take advantage of any of its rights, shall not operate as a continuing waiver of such rights. This transaction shall be governed by the laws of the State of New York, without reference to choice of law rules or to the Convention on Contracts for the International Sale of Goods.