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Americas: Sales Terms & Conditions
Sale Terms & Conditions: Americas
COPPERWELD BIMETALLICS, LLC
1. GOVERNING LAW – Unless otherwise specified by Seller, all orders are accepted by Seller at its General Offices in Fayetteville, Tennessee and shall be governed by and interpreted in accordance with the laws of the State of Tennessee. “Seller” means Copperweld Bimetallics, LLC and their affiliates.
2. FORCE MAJEURE; APPORTIONMENT - Manufacture, shipment and delivery are subject to, and Seller shall not be liable for any delay in or impairment of performance resulting in whole or in pan from, any war (whether or not declared) or strike, difference with workmen, accident, fire, flood, Acts of God, delay in transportation, shortage of materials, equipment breakdowns, plant conditions, laws, regulations, orders or acts of any governmental agency or body or any cause beyond the reasonable control of the Seller, or if performance by Seller becomes impracticable due to the occurrence of a contingency, the non-occurrence of which was a basic assumption on which the sale was made. In any such event, Seller shall have such additional time to perform as may be reasonably necessary and shall have the right to apportion production among its customers in such manner as it deems equitable.
3. MODIFICATION OF TERMS - Seller’s acceptance of any order is expressly subject to Buyer’s assent to each and all of Seller’s terms and conditions and Buyer’s assent to these terms and conditions shall be conclusively presumed without prompt written objection from Buyer thereto or from Buyer’s acceptance of all or any part of the goods or services ordered. No addition to or modification of said terms and conditions shall be binding upon Seller unless specifically agreed to in writing by Seller. If Buyer purchase order or other correspondence or written communication contains terms or conditions contrary to or in addition to the terms and conditions of Seller, acceptance of any order by Seller shall not be construed as assent to such contrary or additional terms and conditions or constitute a waiver by Seller of any of its terms and conditions. Any reference to Buyer’s purchase order or other correspondence or written communication shall not affect or limit the applicability of Seller terms and conditions. Stenographic and clerical errors may be corrected.
4. PRICE - For F.O.B. Plant Sales - Unless otherwise specified in writing by Seller: (a) all prices, quotations, shipments and deliveries by Seller are F.O.B. Seller’s Plant; (b) all base prices, together with related extras and deductions, are subject to change without notice and all orders are accepted subject to Seller’s price in effect at the time of shipment; and (c) all transportation and other charges are for Buyer account.
5. F.A.S. VESSEL SALES - Unless otherwise specified in writing by Seller: (a) all prices, quotations, shipments and deliveries by Seller are F.A.S. Vessel. The price quoted shall include the cost of delivery of the goods alongside an overseas vessel and within reach of its loading tackle or on the dock designated and provided by or for Buyer; (b) all base prices, together with related extras and deductions are subject to change without notice and all orders are accepted subject to Seller’s price in effect at the time of shipment; and (c) unless otherwise agreed in writing, Seller shall be entitled to immediate payment in full for the goods upon tender to Buyer of a document of title covering the same. Seller agrees to render Buyer, at Buyer’s request and expense, assistance in obtaining the documents issued in the country of origin or of shipment or of both, which Buyer may require either for purposes of exportation or for importation at destination. Payment due date, net of discount, shall be based on the date of the invoice.
6. PRODUCING OR SHIPPING POINT - Unless otherwise specified in writing by Seller, Seller reserves the right to produce and ship all or any part of the goods from any of its plants.
7. CREDIT; DEFAULT IN PAYMENT - All orders and shipments are subject to the approval of Seller ' Treasury Department, and Seller may at any time refuse to make shipment or delivery if Buyer fails to fulfill the terms and conditions of payment or fails to provide security satisfactory to Seller. In the event Buyer fails to make payment on any contract between Buyer or any of its affiliates and Seller in accordance with the terms of such contract, Seller may, at its option, and in addition to all other remedies available to it: (a) defer shipments hereunder until such payment is made and satisfactory credit arrangements are established; or (b) cancel the unshipped balance of this order. At Seller’s option, interest will be charged after the due date up to the maximum lawful contract interest rate. In the event Buyer refuses or fails, for any reason, to accept any goods manufactured by Seller, Buyer shall pay Seller for all materials consumed and labor expended to manufacture such goods, and shall reimburse Seller for any special, incidental or consequential damages incurred by Seller as a result of such refusal or failure.
8. SETOFF - Seller shall have the right to credit toward the payment of any monies that may become due Seller hereunder, any sums which may now or hereafter be owed to Buyer by Seller.
9. SECURITY INTEREST - Seller retains a security interest in the goods and all proceeds thereof until payment in full is made by Buyer, and Seller shall have all rights and remedies of a secured party under the Uniform Commercial Code in the event of a breach or default by Buyer in any of its obligations hereunder. Buyer hereby appoints Seller as Buyer’s agent and attorney-in-fact to execute and to file such financing statements and other documents as may be necessary to perfect said security interest. Payment for certain tools and dies used in the manufacturing process does not convey to Buyer title to them or the right to remove them from Seller’s premises. All intellectual property rights in any tools or dies and/or the creation thereof remain the exclusive property of Seller. In the event Buyer fails to reorder for two years, Seller has the right to scrap such tools and dies without notice.
10. TRANSPORTATION - Seller has the right to select the carrier but will use its reasonable efforts to comply with Buyer’s requested method of transportation. Seller reserves the right to use an alternate method of transportation whether or not at a higher cost to Buyer, if the method specified by Buyer is deemed by Seller to be unavailable or otherwise unsatisfactory. In any such case, Seller shall promptly notify Buyer of any such change. Any storage and/or demurrage charges which may accrue on the goods hereunder are for Buyer account. If shipment is delayed at Buyer’s request, Seller may bill Buyer immediately for any goods held at Seller’s plants, and Seller may include in such bill a charge for the reasonable storage costs incurred by Seller.
11. PACKAGING - Seller will use its reasonable efforts to comply with any special packaging, loading or bracing requirements specified in writing in any order. Seller will charge for compliance with Buyer’s special requirements in accordance with Seller’s price list for extras in effect at time of shipment. If no special requirements are specified by Buyer, Seller shall comply with the minimum requirements customarily applied by Seller to the method of transportation used for such goods.
12. INSPECTION - If Seller expressly permits inspection by Buyer at Seller’s plant, Buyer shall make such inspection promptly upon notification that the material is ready and in such manner as not to interfere with Seller ' operations. If such inspection is made, Buyer shall accept or reject before shipment.
13. DISCLAIMER; LIMITED WARRANTY - No warranties, express or implied (including, but not by way of limitation, any implied warranty of merchantability or any implied warranty of fitness for a particular purpose), exist on any order, except that seller warrants the following: (a) title to all goods furnished by seller; and (b) all goods will be manufactured in accordance with the specifications, if any, set forth by buyer and agreed to in writing by seller. Subject to seller’s standard manufacturing variation.
14. LIMITATION OF BUYER’S REMEDIES – Buyer’s remedies with respect to any claim arising out of any order or seller’s performance in connection therewith, including, without limitation, any claim arising out of any defect or alleged defect in any goods or services furnished by seller, shall be limited exclusively to the right of replacement of such goods or services or. At seller’s option, to repayment of the purchase price therefor. Without in any way limiting the generality of the foregoing, in no event shall seller be liable for any consequential or incidental damages (including, without limitation, any loss of production or anticipated profits) or liability incurred by buyer or any third-party with respect to any goods or services furnished or to be furnished hereunder by seller. In no event, regardless of the legal theory on which a remedy is sought, shall seller’s liability exceed the purchase price of the goods or services.
15. DAMAGED GOODS - If any goods arrive at Buyer’s destination in a damaged condition or a shortage occurs, Buyer shall immediately report the damage or shortage in writing to the delivering carrier and to Seller. Any loss or shortage of goods occasioned by damage, or otherwise occurring in transit will be for Buyer account. Seller may assist Buyer in recovering damages, provided Buyer furnishes Seller written authorization to recover damages from Buyer’s carrier.
16. QUALITY ASSURANCE SPECIFICATIONS - Seller has no obligation to ensure that any goods or services purchased from Seller meet any special quality assurance specifications or other requirements, except as agreed upon in writing between Buyer and Seller, and Buyer represents and warrants that goods it purchases from Seller will not be applied by Buyer to or resold by Buyer for application to any critical end use, including without limitation, use in connection with or in any way related to the construction or operation of a nuclear facility, unless the appropriate specification or other requirement for such end use is set forth by Buyer in writing and is expressly accepted by Seller in writing. In the event that any such goods or any services supplied by Seller in connection therewith are applied to a critical end use without the appropriate specification or other requirement therefor having been set forth by Buyer and expressly accepted by Seller as provided above. Buyer shall indemnify and hold Seller harmless from and against any and all damages or claims for damages made by any person for any injury, fatal or nonfatal to any person or for any damage to property, incident to or arising out of such application, including without limitation any loss resulting from the radioactive, toxic, explosive or other hazardous properties of “material” “ nuclear material" or "material” as such terms are defined in the Atomic Energy Act of 1954, any law amendatory thereof or regulations adopted pursuant thereto.
17. TAXES - Any tax which Seller may be required to pay or collect, through assessment or otherwise, under any existing or future law upon or with respect to the sale, purchase, delivery, transportation, exportation, storage, processing, use or consumption of any goods or services described herein, including, without limitation, taxes upon or measured by receipts from sales or services shall be for Buyer account and may be added to the price of such goods or services. Buyer shall promptly pay the amount thereof to Seller upon demand but may, in lieu of such payment, furnish to Seller evidence of the issuance of tax exemption certificates acceptable to the appropriate taxing authorities.
18. CLAIMS - Buyer must make any claims in writing within ninety (90) days after Buyer receipt of the goods. Buyer shall set aside, protect and hold such goods, without further processing, until Seller has an opportunity to inspect and advise of the disposition, if any, to be made of such goods. In no event shall any goods be returned, reworked or scrapped by Buyer without Seller authorization.
19. TECHNICAL ASSISTANCE - Unless otherwise expressly agreed to by Seller: (a) any technical advice provided by Seller with respect to the use of goods or services furnished to Buyer shall be without charge; (b) Seller assumes no obligation or liability for any such advice or for any results occurring as a result of the application of such advice; and (c) Buyer shall have sole responsibility for selection and specification of the goods or services appropriate for the end use thereof
20. PERMISSABLE VARIATIONS - Goods shipped by Seller shall be within Seller published limits and sizes, subject, however, to Seller’s standard variations, and Seller reserves the right to ship overages or underages of weight, length, size and/or quantity in accordance with Seller’s standard practices. Buyer and Seller agree that variations in check weighing by Buyer up to 1% is a permissible variation from invoiced weights or account for differences in kind, type, location and accuracy of scales and possible errors of weighers.
21. PATENTS - If the terms and conditions of Buyer’s written order shall require a patent indemnity and the material covered by such order is to be made in accordance with Seller’s specifications, Seller agrees to defend any suit or proceeding brought against Buyer on a claim that the material or any part thereof furnished under Buyer’s order constitutes an infringement of any patent and to pay all direct and actual damages and costs awarded against Buyer therein, provided in all instances that Seller is promptly notified in writing of any such suit and given authority, information, and assistance reasonably necessary for the defense of same. If the material covered by Buyer written order is to be made in accordance with Buyer’s written specifications and any suit or proceeding is brought against Seller on a claim that the material or any part thereof furnished under Buyer’s order constitutes an infringement of any patent, Buyer agrees to defend any such suit or proceeding and to pay all direct and actual damages and costs awarded against Seller therein, provided in all instances that Buyer is promptly notified in writing of such suit and given authority, information, and assistance reasonably necessary for the defense of same.
22. DRAWBACK - Seller specifically reserves to itself all rights to drawback of duty or taxes paid on materials entering into the manufacture or production of the goods specified in any order. Buyer disclaims all interests in such rights and agrees to furnish Seller with proof of exportation and all other documents necessary to obtain payment of such drawbacks and to cooperate with Seller in obtaining such payment.
23. ASSIGNMENT - Buyer shall not assign any order or any interest therein without the written consent of Seller. Any actual or attempted assignment without Seller’s prior written consent shall entitle Seller to cancel such order upon written notice to Buyer.
24. FAIR LABOR STANDARDS ACT - The material covered by this contract will be produced in compliance with all applicable requirements of the Fair Labor Standards Act of 1938, as amended.
25. WAIVER - Seller waiver of any breach of any terms and conditions set forth herein shall not be construed as a waiver of any other breach, and the failure by Seller to exercise any right arising from any default of Buyer hereunder shall not be deemed a waiver of such right, which may be exercised at any subsequent time.
26. COMPLETE AGREEMENT - Seller’s terms and conditions, together with any other documents incorporated herein by reference, constitute the sole and entire agreement between Buyer and Seller with respect to any order, superseding completely any oral, written or other communications unless the terms thereof are agreed to in writing by Seller. No additions to or variations from such terms and conditions, whether contained in Buyer’s purchase order, any shipping release or elsewhere, shall be binding upon Seller unless agreed to in writing by Seller.
Europe: Sales Terms & Conditions
Sale Terms & Conditions: Europe
COPPERWELD BIMETALLICS, LLC
GENERAL CONDITIONS OF SALE
The present General Conditions of Sale are governing the contract between the Seller and the Customer. The acceptance of the Seller’s offer and the subsequent order means that the Customer irrevocably accepts these General Conditions of Sale in their entirety. Unless otherwise expressly agreed by the Seller, these General Conditions of Sale prevail on any conditions of purchase, general or particular, of the Customer.
Any additional or different terms or any attempt by Customer to vary in any degree any of Seller's General Conditions of Sale are hereby objected to and shall be deemed immaterial and not binding on Seller.
1. FORMATION OF THE CONTRACT –The offers of the Seller are not binding. All sales, contracts and orders become effective only if and when approved and accepted in writing by Seller by the issuance of the Seller Acknowledgment Form. To be valid, any alteration of an order or any derogation to the General Conditions of Sale requires the written and prior acceptance of the Seller
2. PRICE –The prices for the delivery are the prices mentioned in the order as confirmed in the Sellers Acknowledgement Form.
3. DELIVERIES –
The time of delivery is only indicative and therefore not binding for the Seller. The time of delivery indicated on the offer is an estimation of the date on which the products shall be delivered to the Customer. Their no-abidance cannot in any event bring about the cancellation of the order or the payment of any damages to the Customer
Unless otherwise mutually agreed to in writing and signed by both Seller and Customer, delivery from Seller’s factory, fabrication site, or a designated shipment point to Customer’s destination shall be DDU, named place, Incoterms 2000.
If the products are sold under the Incoterm EX-Works, the risk of damage to or loss shall pass to the Customer at the time when the Seller notifies the Customer that the product is available for collection; or in the case of the products to be delivered otherwise than at the Seller’s premises, at the time of delivery. Customer will pay, or reimburse Seller for all freight, taxes, duty and entry fees, special and miscellaneous charges and special packaging charges. If the Customer cannot arrange shipment to ensure their collection within a term of five calendar days after it has been notified that the products are available, the Seller reserves the right to charge extra costs for stocking.
4. INSPECTION OF THE PRODUCTS – The Customer shall cause that an inspection of the products is made at the delivery of the products. The inspection is made entirely at the Customer expenses.
Quantities or dimensions. The quantities and/or dimensions appearing on the Seller’s documents are deemed to be correct. Any dispute in that respect shall be notified to the carriers at the time of physical delivery, and must, in addition, be notified to the Seller by the Customer at the latest within two calendar days following the delivery of the goods. Execution of the order shall be deemed to be in conformity with the contract if the actual weight or quantity supplied is inferior to or is exceeding 10% of the weight or quantity ordered. In the event of visible discrepancies or shortage, the Customer is held to make a notification on the CMR document and to send a registered letter to the latter (or any other responsible third party) at the time of the discovery of the discrepancy or shortage but at the latest within seven calendar days from the delivery. In the event of non- delivery of the whole shipment and/or entire parcel, the customer is held to make a notification on the CMR document and he is also requested to address a registered letter to the carrier (or any third party) to hold him responsible of the non-delivery and to ask him a certificate of definitive loss. No remedy will be provided by the Seller in case of notification not compliant with this article or in case or late notification.
Transport. The products are duly packed in such a way as to prevent any damage. The Customer (or its agent) is requested to carefully check the packaging. If same shows traces of damage or breakage, the Customer has to immediately insert reserves on the CMR and to hold the carrier responsible. A registered letter must be addressed immediately by the Customer to the carrier. In addition, in the event of any damages due to the transport or/and handling or in the event of other damages which are visible at the delivery, notification must be made in writing on the CMR and to the Seller within two calendar days following the delivery of the products. No remedy will be provided by the Seller in case of notification not compliant with this article or in case of late notification.
Quality. Any defect discovered when the products are put into work shall be notified at once and, at the latest, within seven calendar days following the discovery of the defect. For the purposes of the present clause, defects shall be understood to refer solely to defects in the production of the products and shall not include damages resulting from transport, handling or storage and/or defects which were visible at the delivery.
5. WARRANTY, LIMITATION OF LIABILITY AND REMEDIES –
THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NOR IS THERE ANY OTHER WARRANTY EXPRESS OR IMPLIED, EXCEPT AS PROVIDED FOR HEREIN. Without prejudice to the application of the Law on products liability, unless expressly agreed to the contrary, the Seller’s liability is limited to the outright replacement of the products agreed to be defective, without any possibility of any other remedies or/ and indemnification. In no circumstances, except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, including remanufacturing cost, rework cost, de-installation or re-installation cost, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the manufacture, packaging, delivery, storage, use, misuse or non-use of any of the product their use or resale by the Customer, or any other cause whatsoever.
The products agreed to be defective remain the property of the Seller. These products must be returned to the Seller within 15 calendar days of Seller’s acceptation of the claim or be available for inspection by the Seller or his representative until final decision. The Customer bears the responsibility of providing appropriate storage and preservation of the products.
6. RETENTION OF OWNERSHIP. The products shall remain the property of the Seller until such time as the full-price and all other transport and other costs associated with the delivery have been fully paid by the Customer.
7. PAYMENT. Customer shall make payment in the currency specified in the Seller’s documentation and in full compliance with the payment terms as defined in the Seller Acknowledgement Form. A monthly interest charge at the rate of 12% per annum will be assessed on all past due payments calculated from the due date. In addition, in the event of non-payment of the full purchase price by the due date of payment, the amount outstanding shall be automatically increased by 15%. Seller may, at any time or times, suspend performance of any order or require payment in cash, security or other adequate assurance satisfactory to Seller when, in Seller's opinion, the financial condition of Customer or other grounds for insecurity warrant such action. Customer may not set off or try to set off any amounts that may be claimed by Customer against any amounts that are owed to Seller. Without prejudice to the foregoing, the Seller shall also be entitled to recover from the Customer all costs expended in relation to the recovery of outstanding amounts including legal costs.
8. FORCE MAJEURE –Whenever performance by Seller of any of its obligations hereunder, is substantially prevented by reason of any act of God, strike, lock-out, or other industrial or transportation disturbance, fire lack of materials, law, regulation or ordinance, war or war conditions, or by reason of any other matter beyond its reasonable control, then such performance shall be excused, and deemed suspended during the continuation of such event and for a reasonable time thereafter, delayed, or adjusted accordingly.
9. GOVERNING LAW – COMPETENT COURT –When subscribed through the Belgian branch office, the contract is governed by Belgian law excluding the application of the Convention of Vienna on Contracts for International Sale of Goods, as well as by Copperweld Bimetallics L.L.C.’s Sale Terms and Conditions as found on our website. The Courts of Brussels shall have exclusive jurisdiction with regard to any dispute arising in connection with the contract, this without prejudice to the Seller’s right to sue for recovery of money due to us before the Courts having jurisdiction over the Customer's place of business. If any provision of these Seller’s General Conditions of Sale is held by any competent authority to be invalid or unenforceable in whole or in any part, such provision shall be ineffective, but only to the extent of such invalidity or unenforceability, without invalidating the remainder of such provision nor the other provisions of these conditions which shall not be affected.