1. Contract Acceptance. Customer agrees that terms and conditions set forth herein shall be applicable to all of our quotations and products or service we provide. Customer shall not revoke, or change any purchase order in process of production unless approved by us in writing on terms that will compensate our costs and expenses associated therewith and will indemnify us against all losses related thereto. This agreement shall replace and supersede any conflicting or additional terms and conditions contained in customer’s purchase order, terms and conditions describing the sale of our products and service. Superior Metal Shapes, Inc. hereby notifies you of its objection to any conflicting or additional terms and conditions contained in your purchase order. Buyer issuing the purchase order per our quotation or your acceptance of any products delivered under your purchase order shall be conclusive evidence of your acceptance of these terms and conditions.
1.1 Risk Assessment and RFQ (Request for Quote). All new items and orders are subject to quotation by our sales department. Our sales Department perform risk assessment during RFQ. Any risks such as but not limited to technical difficulties, tight tolerance, and expedite delivery that we find high risk shall be the best effort basis unless otherwise noted on our quote.
2. Price, Tax and Additional Charges. Unless otherwise specified in writing signed by Superior Metal Shapes, Inc. price of material and extrusion tooling are based on our latest quote. Whenever applicable, taxes will be added to seller’s invoice as a separate charge to be paid by buyer. Any special requirements of the order must be disclosed at time of quote, nondisclosed special requirements will be subject to additional charges.
3. Payment. Unless otherwise specified on the quote, payment terms are net 30 days from shipment of order. All new customers will be required to pay for tooling in advance and ½ CIA of the material order; balance will be COD upon credit approval. Existing customer with COD terms for orders over $2,500 are required to pay ½ CIA; remaining balance will be COD. We reserve the right to add 1 ½% per month to any unpaid balance outside of the terms stated herein. All customers are subject to ½ CIA if order total amount exceeds $10,000.00 or per our risk assessment of the order.
4. Delivery and Delays. Estimated delivery time is specified on the quote and is from the date of order and approval of die drawings. Superior Metal Shapes will use reasonable efforts to fill customer’s order in accordance with the estimated shipping date; however, we shall not be responsible for any delay or late delivery caused by circumstances beyond its reasonable control including but not limited to described in Force Majeure.
5. Shipment and Shipping Tolerances. Unless otherwise specified in the quote. Our standard shipping tolerance for less than 300lb = ±20%; 300lb – 1000lb = ±10% and over 1000lb = ±8%. All shipments terms are F.O.B our plant. Seller is not responsible for lost or damaged goods during transit of the product. Any damage that may have occurred during shipping or transit of products must be reported to the shipping or Freight Company within seven days and products must be in the original packing or package.
6. ITAR and Export Control. SUPERIOR METAL SHAPES, INC. is confined to the production of unclassified technical data to produce custom aluminum extrusion with CNC machining capability for United States Government related work which exempts SMS from registering with the Directorate of Defense Trade Control [DDTC] pursuant to 22 CFR § 122.1(b)(2). Aluminum extrusion made of alloy 2024, 6061, 6063 and 7075 are classified under Export Control Classification Number (ECCN) EAR99 and as such, may be exported without a license using symbol NLR (No License Required) pursuant to the United States Department of Commerce, Bureau of Industry and Security (Case Number Z411992). Customer certifies that the items purchased from Superior Metal Shapes, Inc. will not be shipped to embargoed or sanctioned country or destination as defined in part 738 of EAR, the items are not being shipped to a denied person, sanctioned entity or prohibited end-user, the items will not be used for a specific end-use, the items will not be used in prohibited chemical biological or nuclear weapons or missile activities as defined in part 744 of EAR.
7. Equipment. Any equipment but not limited to dies, backers, bolsters, fixtures, tools etc. which Superior Metal Shapes, Inc. to construct or purchase for use in the production of extruding, machining or to fill customer order will be for exclusive use by Superior Metal Shapes Inc. and reserves the right of possession and control. All such equipment will be used exclusively for the manufacture of goods for buyer. Any changes to customer design or profile of extrusion may result in reconstruction or repurchase of equipment and will be paid by buyer. Superior Metal Shapes, Inc. reserve the right to disposition of any equipment as we desire after Ten (10) consecutive years no orders acceptable to us are received from buyer for goods to be manufacture with such equipment.
8. Limitation of Liability. In recognition of the relative risks and benefits to both the CUSTOMER and SUPERIOR METAL SHAPES [HEREINAFTER “SMS”], the risks have been allocated such that the CUSTOMER agrees to limit the liability of the SMS, its officers, directors, partners, employees, shareholders, owners, independent contractors and subconsultants for any and all claims, losses, costs, damages of any nature whatsoever whether arising from breach of contract, negligence, or other common law or statutory theory of recovery, or claims expenses from any cause or causes, including attorney’s fees and costs, court costs and expert witness fees and costs, so that the total aggregate liability, if any, of SMS, its officers, directors, partners, employees, shareholders, owners, independent contractors and subconsultants shall not exceed the purchase price paid for the affected product or products of the Order. SMS, its officers, directors, partners, employees, shareholders shall not be liable for loss of profits, or revenue, promotional, or manufacturing expenses, overhead, business interruption, loss of prospective advantage past or future, business interruption cost damage, damage to personal or business reputation or loss of customer, loss of contract or prospective contracts, loss of orders or any direct, indirect, special, incidental or consequential damages of any kind whatsoever and exemplary and punitive damages of any kind.
Limitations on liability, waivers and indemnities in this Agreement are business understandings between the parties and shall apply to all legal theories of recovery, including breach of contract or warranty, breach of fiduciary duty, tort (including negligence), strict or statutory liability, or any other cause of action, provided that these limitations on liability, waivers and indemnities will not apply to any losses or damages that may be found by a trier of fact to have been caused by the SMS’s gross negligence or willful misconduct. The parties also agree that the Customer will not seek damages in excess of the contractually agreed-upon limitations directly or indirectly through suits against other parties who may join SMS as a third-party defendant. “Parties” means the Customer and the SMS, its officers, directors, partners, employees, independent contractors, subcontractors, consultants and subconsultant.
9. Force Majeure: Seller is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Buyer.
10. Technical Assistance or Advice: If technical assistance or advice are offered or given to Buyer, such assistance or advice is given free of charge and only as an accommodation to Buyer. Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.
11. Warranty. Superior Metal Shapes, Inc. warrants to buyer that the product(s) packaged at time of shipment conforms to the specification provided in the order documentation as accepted by us and they are free from defects in material and workmanship. In the event that products do not conform to the warranties, it must be reported to Superior Metal Shapes within 10 (ten) working days of receipt. We will rework or issue the replacement order of the non-conforming products.
Customer agrees to defend, indemnify and hold harmless SUPERIOR METAL SHAPES, INC. and its officers, directors, employees and agents from and against any and all liabilities, losses, claims, damages and expenses of any nature, including reasonable attorneys’ fees and costs, that are reasonably incurred by SUPERIOR METAL SHAPES, INC. caused in whole or in part by any negligent act or omission of CUSTOMER, any sub-contractor, anyone directly or indirectly employed or associated by any of them, or anyone for whose acts any of them may be liable, except where caused by the active negligence, sole negligence, or willful misconduct of SUPERIOR METAL SHAPES, INC.
13. ATTORNEYS’ FEES AND COSTS
In the event of any dispute or litigation arising from or related to this Agreement, or the services provided under this Agreement, the SUPERIOR METAL SHAPES shall be entitled to recover from the CUSTOMER all reasonable attorneys’ fees, costs, court costs and all other related expenses incurred in such litigation. In the event of a no-adjudicative settlement of litigation between the parties or a resolution of a dispute by arbitration, mediation or otherwise, the term “prevailing party” shall be determined by that process.