ACKNOWLEDGMENT OF CUSTOMER ORDER. Elgiloy Specialty Metals (“ESM”) acknowledges receipt and thanks you for your order. If this Order Verification Form (“Sales Order”) does not correctly state your order please advise us at once of any discrepancy, referring to our order number as indicated on reverse side ESM will proceed to execute your order expressly conditioned upon your assent to and acceptance of the terms and conditions of this Sales Order as provided below. All terms and conditions of this Sales Order constitute the entire agreement between you and ESM for the good set forth in this Sales Order. No representation or statement not expressly contained in this Sales Order shall be binding upon ESM.
TERMS AND CONDITIONS
1.Your Acceptance of this Order Verification Form. Your acceptance of this Order Verification Form (“Sales Order”) and assent to its terms and conditions are expressly limited to the terms of the Sales Order. Your order shall not be effective without such acceptance and assent, which shall be deemed given upon acceptance of the goods shipped hereunder, whichever is sooner. Any objections to the terms or conditions of this Sales Order must be in writing, and will be deemed to be a rejection of the Sales Order and cancellation of your order if their adoption would materially alter the terms or conditions of this Sales Order, ESM will proceed to complete its performance under the terms and conditions of this Sales Order.
2. Price Quotations. The prices quoted on this Sales Order are firm, subject to any surcharge for materials. Price is subject to change without notice for any delays caused by you as buyer or beyond the control of ESM. All prices quoted are based on existing freight rates and transportation charges. Should any increase or decrease in freight rates or transportation charges occur, such increase or decrease shall be for your account. ESM shall not be responsible for spotting, switching or drayage charges at destination. Any excises, levies or taxes which ESM may be required to pay or collect under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing use, consumption, or transportation of any of the material covered hereby, shall be or your account, and that you agree to pay the amount thereof to ESM.
3. Time of Deliveries. Deliveries shall be subject to and contingent upon, strikes, labor difficulties, riot, war, delay or defaults of common carriers, failure of curtailment of ESM’s reasonable control. ESM shall not be liable for any loss or damage arising there from, including, but not limited to general, special or consequential damages. ESM shall have the additional right, in the event of the happening of any ofthe above contingencies, at its option to cancel this order or any part thereof without any resulting liability. ln the event ESM, by its acts or omissions causes a delay, ESM shall not be liable for any consequential damages, and its liability shall not exceed the purchase price of the material purchased hereunder.
4. Terms and Credit. Terms are net cash 30 days with no discount all invoices unpaid at the expiration of the period of thirty (30) days from date of invoice shall bear interest at the rate of eighteen (18) percent per annum. Shipments and deliveries shall be subject to approval by ESM’s credit department. lf you fail to fulfill the terms of payment by any form of anticipatory breach, or by failing to make any payment when due, or by defaulting under any other obligation, or in the event you institute any form of bankruptcy proceeding, voluntarily dissolve or liquidate or are placed under the control of a trustee receiver, or liquidator or otherwise become insolvent, or make an arrangement of liquidation or assignment or composition for the benefit of creditors, ESM may defer further shipments or may at its option, cancel any unshipped balance. ESM reserves the right, prior to making any shipment and during transit, to require from you satisfactory assurances or security for performance of your obligations or to require payment C.O.D., or other alternate payment terms.
5. Claims. Customers are required to run 10% of a skid coil prior to submitting a claim, all claims must be submitted in writing with a supporting sample and photo of the defect. ESM will not honor claims more than 6 months after the ship date. ESM will not honor claims for rejections less than 2% of the skid weight. ESM will not accept customer debits without written authorization from ESM Technical Service.
6. ESM’S/CMC’S Limited Warranty. ESM provides the following limited warranty: ESM agrees to replace material found defective for failure to meet ESM’s standard manufacturing practices and ESM’s standard tolerance for variations. No claim for allowance will be accepted unless notice of such claim is received within 90 days after receipt of material. ESM’s obligation shall be limited to replacement of defective material, or at ESM’s option, to adjust matter fairly and promptly. ln no event shall ESM’s be liable for general damages, consequential or special damages or for transportation, installation, adjustment or other expenses which may arise in connection with such material. In no event shall ESM’s liability exceed the purchase price of the material. Material claimed to be deflective shall not be restored without ESM’s authorization. This warranty is expressly made in lieu of any and all other warranties, expressed or implied, including, but not limited to, any warranties respecting workmanship, materials, merchantability or fitness for use.
7. Toll Process Orders Tolling is done on a best effort basis; claims will be evaluated and accepted solely at ESM’s discretion. All claims must be submitted in writing with a supporting sample and photo of the defect. ESM will not accept customer debits without written authorization from ESM Technical Service. For Toll process orders, ESM provides the following limited warranty: ESM agrees to refund processing cost if ESM agrees customer material was damaged by a failure to meet ESM’s standard manufacturing practices and ESM’s standard tolerance for variations.
8. Inspection Prior to Shipment. ln the event you request inspection prior to Shipment, such inspection and your resulting acceptance must be made before shipment. Any charges for inspection, analysis, or tests by any outside agency shall be paid by you. Such inspection shall be final and conclusive of ESM’s full performance and the acceptability of the good under this Sales Order.
9. Title and Risks of Loss. Unless otherwise specified, all shipments will be made F.O.B. the ESM factory, and ESM will select the carrier. Title to you as buyer will pass upon delivery by ESM to the carrier, at which time you will become responsible for risk of loss. The method and route of shipment are at ESM’s discretion unless you as the buyer supply ESM explicit instructions in writing as to the same. Products that is otherwise ready for Shipment, but which are at your request stored or held for you by ESM, shall or held at your risk and expense.
10. Cancellations Amendments. ESM shall not be obligated to accept cancellation of any order following your acceptance of this Sales Order. However ESM may at its option, accept cancellation of any such order, provided you as buyer shall be liable for any expenses incurred or loss suffered by ESM in conversion and sale of such material to other specifications. No cancellation, amendment or other modification to this Sales Order, including, but not limited to, any change of materials or specifications in your order shall be made except by mutual agreement in Writing signed by both an authorized representative of ESM and by an authorized representative of your purchasing department.
11. Arbitration. Any controversy dispute or claim arising out of the interpretation performance or breach of this Sales Order shall be resolved by binding arbitration, by the initiations of either party, in accordance with the rules of the American Arbitration Association. The arbitrator or arbitrators shall apply Illinois substantive law and the Illinois Evidence Code in the conduct of the proceeding. The parties shall endeavor to select an arbitrator from the American Arbitrator Association panel who is technically knowledgeable concerned the subject matter of this Sales Order; however, such selection shall not remedies as provided by Illinois law. The parties agree that venue for any legal action arbitration proceeding or other legal proceedings hereunder shall be Hampshire, Illinois. The parties agreed pursuant to provisions of Code of Civil Procedure that discovery may be conducted under the provisions of Code of Civil Procedure.
12. Attorney’s Fees. ln the event legal action, arbitration or other legal proceeding is instituted relating to or arising out of this Sales Order, the prevailing party hereto shall be entitled to reasonable attorney’s fees apart from any other remedy available, if ESM becomes a party to or deponent in any litigation concerning this Sales Order by reason of any act or omission on your part you as buyer shall be liable to ESM for the reasonable attorney’s fees and expenses and court costs incurred by it in the proceeding.
13. Indemnity. You as buyer agree to defend, indemnify, and hold ESM harmless of and from any and all damages, liabilities, claims, or causes of action arising out of your design, use, sale, assignment, transfer or other disposition of the good sold hereunder.
14. Wavier. The failure at ESM to exercise any right provided herein or to require your performance of any provision hereof shall not be construed as a waiver of such right or provision or of any other provisions of this Sales Order.