Central National Gottesman Inc.
Metal Products
Sales Terms & Conditions
1. COMPLETE TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale (“Terms”) apply to and govern all sales by Central National Gottesman Inc. and its divisions, subsidiaries and affiliates, including its Central National division and Central National Gottesman Trading DR SAS (collectively "CNG" or “Seller") to its customers (each, a “Customer”), 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 Customer’s acceptance of all, and only, these Terms. CNG objects to any different or additional terms proposed by Customer in any purchase order, acknowledgment, website or otherwise which add to, vary from, or conflict with the Terms, and any such proposed terms shall be void, and ACCEPTANCE OF ANY ORDER IS EXPRESSLY MADE CONDITIONAL ON CUSTOMER'S ASSENT TO THESE TERMS. These Terms together with any order acknowledgement by CNG (an "Acknowledgement") and CNG's Customer Claims Policy are the final and complete expression of all terms and conditions of the agreement. These terms and conditions can be modified, waived, or amended only by writing signed by both Customer and CNG. Subject to the express provisions of these Terms, the customs of the American metals trade relating to merchandise of the type and quality herein provided for shall apply, including without limitation tolerances as to quantity, quality (including basis weight or grammage), size (including size of sheets and width of rolls or reels) and delivery.
2. TERMS OF PAYMENT. Payment is due according to the terms set forth on the invoice, unless the parties agree in writing 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 Customer 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. To secure payment for all sums due hereunder or otherwise, Seller shall retain a security interest in all goods and equipment delivered hereunder and these terms and conditions shall be deemed a security agreement under the Uniform Commercial Code. Customer authorizes Seller to execute and file on Customer's behalf all documents Seller deems necessary to perfect such security interest.
3. FINANCIAL RESPONSIBILITY; Retention of Title. Any credit terms offered by CNG are available only for so long as Customer 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 including but not limited to refusal or failure to adequately respond to requests for financial information, the financial condition of Customer 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 Customer to take and pay for the quantity of goods ordered. If CNG shall have any doubt at any time as to Customer’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. Customer’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 Customer 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 Customer. Nothing in this paragraph is intended to affect the obligation of Customer to accept and pay for the goods. Product delivered by Seller shall to the extent permitted by the law of Customer’s country remain the property of the Seller until all amounts owed by Customer to Seller have been indefeasibly paid in full.
4. PRICE; NO DEDUCTION. The price for the sale of any merchandise shall be Seller’s price prevailing at time of shipment unless otherwise agreed. Any such agreement as to pricing or price protection is based on manufacturer’s then current price and price protection guidelines, which are subject to change. Notwithstanding any such agreement any increase in the cost to Seller of the purchase and delivery of the merchandise, whether by way of a change in manufacturer’s price, imposition of surcharge, change in freight policies or costs, tariffs, duties or otherwise, including with respect to orders previously placed and accepted, will result in a correlative increase in the price payable by Customer. 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. In the case of sales arranged through cooperatives, purchasing groups, or affiliated entities Seller may pay a rebate to the cooperative, purchasing group or affiliated entity in connection with such sale. Customer shall not be entitled to deduct from the price invoiced to it by CNG the amount of any claim asserted by Customer 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, import and export duties, imposts or other taxes, consular fees, tariff charges, and other charges, foreign and domestic, imposed upon the manufacture, sale, transportation, importation, delivery and/or use of any merchandise sold to Customer by CNG are the responsibility of, and shall be paid by, Customer, 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, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT 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 CUSTOMER. 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. SELLER AND CUSTOMER. ANY LEGAL ACTION AGAINST SELLER FOR BREACH OF THESE TERMS, ANY ACKNOWLEDGEMENT OR SUCH ANY OTHER AGREEMENT INCLUDING ANY WARRANTIES HEREUNDER, MUST BE INSTITUTED WITHIN THIRTY (30) DAYS AFTER DELIVERY. Seller shall have no liability for any claim or liability arising out of the consumption or use by Customer or any other person of the merchandise subject hereto. No claims by Customer of whatever nature may be made except in writing within 30 days after the arrival of the carrier at its destination or of the merchandise at any other place of delivery or if merchandise is stored at any point for Customer's account or delivered at any place other than specified in an Acknowledgement, within 30 days after the commencement of such storage, or the date of delivery. Due opportunity must be given for investigation by Seller's representative. Good delivery shall be conclusively deemed to have been made if no claim is made as provided above.
7. INSPECTION ON DELIVERY; NOTICE OF CLAIMS; CLAIMS POLICIES. Customer 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. Customer, 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 Customer 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. Customer’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. All claims are subject to CNG's Customer Claims Policy cng-inc.com/CNG-Metals-Claims-Policy.htm.
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.
b. Exchange proviso: For goods sold and shipped by CNG in another currency than the one in which the Customer wants the goods to be invoiced, the invoice amount shall be converted at the rate quoted on the day when CNG paid for such goods. If, in the event of devaluation or revaluation, CNG's supplier refuses delivery of still unshipped goods unless the price is adjusted, the affected order shall be cancelled unless CNG and Customer 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 Customer’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 Customer in processing claims against carriers, without incurring liability therefor. Any increase in delivery costs resulting from Customer'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 Customer's account. Delivery times shall not be regarded as binding and delays in delivery shall not entitled Customer to claim damages. If for any reason Customer 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 Customer 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 Customer; (ii) the goods shall be deemed to have been delivered and Customer will be invoiced; and (iii) CNG, at its option, may store the goods until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, transportation, storage and insurance).
9. FORCE MAJEURE; IMPRACTICABILITY. Seller’s performance is excused if Seller's performance is, in whole or in part, prevented, delayed, hindered or rendered impracticable or more expensive by a circumstance caused in whole or in part by any condition beyond Seller's reasonable control, whether affecting the Seller, the carrier or Seller's supplier or manufacturer, including as a result of failure of Seller’s suppliers to make adequate or timely delivery of the merchandise (including as a result of complete or partial mill sale or shutdown); general labor disturbance such as but not limited to strikes, lockouts or other labor disputes; war (declared or not), hostilities, military mobilization, riot, armed conflict, insurrection, embargo or blockade; terrorism, sabotage or piracy; imposition of duties, tariffs, quotas, sanctions or other import, export or other restrictions (including restrictions on payment channels); plague, epidemic, pandemic, widespread infectious disease or public health crisis, including quarantine or other employee restriction or other emergency, statute, regulation, order or any other action of any governmental authority; transportation breakdown or delay; rejected mill runs; act of God or natural disaster such as but not limited to storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake, volcanic activity, landslide, tidal wave, tsunami, flood, damage or destruction by lightning, drought, explosion, fire; destruction of machines, equipment factories and any kind of installation; prolonged breakdown of telecommunication or electric current; accidents; shortage or inability to obtain material or supplies, or any other circumstance beyond Seller’s control whether or not foreseeable or abatable or subject to mitigation by Seller. Quantities so affected may be eliminated from the amount ordered at the discretion of the party affected without liability and Seller may allocate its available supply among its purchasers, but the order shall remain otherwise unaffected. Any such failure to perform shall not constitute a default; but Seller may either cancel such transaction as to the undelivered portion or may deliver when and where (within, however, the country of destination) reasonably able; and when making deliveries, Seller may apportion Seller's available supply among Seller's customers in a reasonable manner. Shipments in transit must be accepted by the Customer. In no event shall CNG be obligated to purchase material from others to enable CNG to deliver goods to Customer hereunder. Customer shall reimburse Seller for demurrage and warehouse charges and extra delivery expense on merchandise subject hereto which cannot be reasonably delivered as designated because of conditions beyond Seller's reasonable control, including labor unrest affecting port conditions. If for any reason beyond Seller's reasonable control, delivery is made at a location other than the location designated or if the carrier shall make delivery elsewhere than as designated under the force majeure provisions of its bill of lading, such place of delivery shall be deemed substituted for all purposes for the place so designated.
10. SPECIFICATIONS; MATERIAL SAFETY DATA SHEET (MSDS). Customer will familiarize itself with all specifications, information and precautions disclosed in safety and health information, including, but not limited to, any MSDS, transmitted to Customer by CNG, or any information supplied to Customer by CNG or otherwise available to Customer at any time. Customer 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 Customer.
11. PRODUCT PROTECTION. Building materials must be protected from moisture exposure according to industry customs during transit, storage, and use, including without limitation, Customer’s obligations of product protection in 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 Customer and CNG to each other are mutual and subject to setoff. For purposes of this paragraph, "Customer" 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 any other agreement may be modified, amended or rescinded unless by a written instrument executed by Seller and Customer. 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 other agreement, or to take advantage of any of its rights, shall not operate as a continuing waiver of such rights. If Customer breaches any of the terms herein, including failure to timely pay for any goods ordered, necessitating any collection efforts or legal action by Seller, Customer agrees that Seller shall be entitled to recover its reasonable costs incurred including, but not limited to, reasonable attorneys’ fees and costs. Seller shall have the right to assign any and all accounts receivable from, and any rights against, Customer to any person. Customer shall not have the right to offset any amounts owed to it by Seller or any of its affiliates against amounts owed by Customer to Seller. This transaction shall be governed by the laws of the State of New York, without reference to choice of law rules, and the Convention on Contracts for the International Sale of Goods shall not be applicable. Any legal action or proceeding concerning the validity, interpretation and enforcement of these terms or any sale of goods by Seller, matters arising out of or related to these terms or any sale of goods by Seller or its making, performance or breach, or related matters shall be brought exclusively in the courts of the State of New York in the County of New York or of the United States of America for the Southern District of New York, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues and THE PARTIES WAIVE TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING. Process in any such action may be served by registered or certified mail addressed to a party at its last known address.
Legal/Forms/Terms/Metals v9 (rev 1-19-22)