Standard Terms and Conditions of Sale

Any order by a person (“Buyer”) for goods (an “Order”), if accepted, is accepted subject to these Midland Metal Standard Terms and Conditions of Sale (“T&Cs”), which are incorporated into any acceptance, acknowledgement, invoice and other document issued by Midland Metal Mfg. Co., Inc. (“Seller”) in response to such Order (each a “Response”), and any reference thereto shall include these T&Cs. No waiver, alteration, or modification of these T&Cs shall be valid unless expressly agreed to in writing by Seller. The T&Cs constitute the entire agreement between the parties and any different, additional or conflicting terms or conditions set forth in Buyer’s purchase order or any other document issued by Buyer are expressly objected to by Seller and the terms hereof, including those contained in the applicable Response, shall exclusively govern the purchase and sale of the goods covered by the Response unless there is another manually signed agreement between the parties, which shall control to the extent there is a conflict between the terms of such agreement and these T&Cs.

1. Payment Terms: Payment terms are 2%-10days/net 30 on approved accounts in good standing and shall be paid in United States dollars. Shipment may be held if account is past due. Buyer agrees that any overdue amounts shall be subject to a late payment charge on the overdue balance of 1.5% per month or such lesser amount as is the maximum rate of interest allowed by law. Buyer shall pay any and all reasonable costs, including attorneys’ fees, incurred by Seller while collecting any delinquent balance. Debit memos are not accepted unless approved.

2. Price: The Seller list or quoted price is subject to change without notice. The goods are invoiced at prices in effect on date of shipment. Prices do not include taxes, if any, based upon or measured by the sales price, which taxes will be added to the prices where applicable. Any taxes which Seller may be required to pay or collect, upon or with respect to the sale, purchase, delivery, storage, processing, use, or transportation of the goods purchased hereunder, shall be for Buyer’s account, and shall be paid promptly by Buyer to Seller upon demand.

3. Delivery Terms: All goods are sold FOB our shipping USA locations. Title and risk of loss passes to the buyer upon delivery to the carrier. Freight is prepaid via the carrier of our choice on orders totaling $1,500 or more to any destination in the USA. Backorders for items from prepaid orders that are marked in our price list as “stock” items will be shipped prepaid along with upcoming prepaid orders when possible. Non-stocked or special-ordered items will be shipped when available. Buyer is responsible for costs associated with shipment upon acceptance if so assigned based on freight classification (i.e., “prepaid” or FOB)

4. Title/Security: Unless a conditional sale is noted in this Agreement, title to the goods covered by this Agreement shall pass to Buyer upon delivery to carrier. Buyer hereby grants Seller and Seller hereby reserves a purchase money security interest in and to the goods sold to Buyer together with all proceeds thereof to secure Buyer’s performance and payment. Buyer agrees upon Seller’s request to do all acts and execute all documents reasonably necessary to assist Seller’s perfection and maintenance of any such security title and right of possession, including, but not limited to, executing and filing documents with the appropriate governmental agency.

5. Orders: (A) Domestic (USA) Sales. Buyer shall submit a purchase order (“Purchase Order”) for the goods which shall, at minimum, include: (a) part number of the goods ordered; (b) quantity; (c) price of the goods; (d) requested delivery date; and (e) shipping instructions and shipping address, including a statement that the goods will be shipped in accordance with these T&Cs. All Purchase Orders are subject to acceptance by Seller. Buyer shall be responsible for all additional costs resulting from errors made in connection with telephone, online, or hand written Purchase Orders accepted by Seller and any errors related to such a Purchase Order must be disputed within 1 hour from Seller’s receipt of the Purchase Order. Confirming Purchase Orders are not accepted by Seller. If such a confirming Purchase Order is sent to Seller, it may be treated as an original open Order and duplicated. Seller will not be responsible for expenses or inconveniences incurred thereby. If Buyer’s Order is in the form of a blanket Purchase Order, Buyer agrees that each release shall be treated as a separate sales transaction hereunder, that all releases shall be non-cancelable and, unless agreed in writing by Seller, all releases under such blanket Purchase Order shall be accepted by Buyer within 12 months of Seller’s Order acknowledgement. If the aggregate purchase price of goods pursuant to a Purchase Order is under $50, or such other amount that is agreed to from time to time by the parties, then the cost of such goods shall be rounded up to that minimum order value.

6. Order Cancellation/Amendment: Orders cannot be canceled or amended except with Seller's consent. Cancellation charges may be applied at Seller's discretion. Seller may, in its sole discretion and without liability, alter the specifications for any goods.

7. Acceptance: Buyer shall conduct any incoming inspection tests on the goods within 5 days of delivery. In the event of any shortage, damage or discrepancy in or to a shipment of goods or pricing discrepancies, Buyer shall promptly give notice, but in no event later than within 15 days of delivery thereof to Seller and shall furnish such written evidence or other documentation as Seller reasonably may deem appropriate. If such evidence indicates, in Seller’s reasonable judgment, that such shortage, damage or discrepancy existed at the time of delivery of the goods to the carrier, Seller shall promptly deliver additional or substitute goods to Buyer; provided, however, that Seller may, in its sole discretion, require Buyer to return all damaged goods prior to delivery of substitute goods. If Buyer shall fail to timely give Seller such written notice, the goods shall be deemed to conform to the warranty and Buyer shall be deemed to have accepted the goods and shall pay for the goods in accordance herewith.

8. Termination: Seller shall have the right to cancel for default hereunder all or any part of Buyer’s order. This right of cancellation is in addition to and not in lieu of any other remedies which Seller may have in law or equity.

9. Returns: No goods shall be returned to Seller without Seller’s prior written authorization to Buyer to make such returns and must be returned within 30 days of such authorization at Buyer’s cost. If Buyer returns goods in the manner required under the previous sentence, and if the returned goods are (a) in new, unused, unopened and undamaged condition; and (b) not more than 12 months after the original invoice date; the returned goods will, subject to the applicable handling charge, be accepted by Seller for return. Used or discontinued goods or parts or goods specially manufactured will not be accepted for credit unless specifically agreed to by Seller in its sole discretion. Buyer’s sole remedy for returns of goods shall be a credit for the purchase price less any handling charges. Returned goods are subject to a 25% handling charge. Returns found to be free of material and workmanship defects will be held for 20 days and if Buyer does not provide Seller repair or return instructions, the Seller will scrap the goods.

RMA Request Form

10. Buyer’s Specifications Buyer shall be solely responsible for ensuring that all specifications, drawings, information, advice, recommendations or requests provided to Seller by Buyer or any of its agents are accurate and suitable. Seller’s examination or consideration of any such specifications, drawings, information, advice, recommendations or requests shall not result in any liability on the part of Seller.

11. Seller Warranty: Seller warrants that goods sold hereunder are warranted to be free from defects in material and workmanship for a period of one year from the date of invoice when used according to the manufacturer’s recommended usage and in an ordinary manner. Seller’s liability for breach of this warranty is limited to the repair of or replacement in kind or credit, at Seller’s option, of any items proved defective, in Seller’s reasonable discretion, provided the allegedly defective goods are returned to Seller prepaid. All costs and expense related to shipping of any replacement parts or goods shall be paid by Seller if there is a breach of this warranty but Buyer shall pay for all installation costs. Buyer must provide prompt written notice to Seller of any breach of this warranty to obtain its benefits. THE WARRANTY EXPRESSED ABOVE IS IN LIEU OF AND EXCLUSIVE OF ALL OTHER WARRANTIES. THERE ARE NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, EXCEPT AS STATED HEREIN. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE SPECIFICALLY DISCLAIMED. SELLER'S LIABILITY FOR BREACH OF WARRANTY IS AS HEREIN STATED AND IS THE EXCLUSIVE REMEDY AND IN NO EVENT SHALL SELLER BE LIABLE OR RESPONSIBLE FOR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, OR EVEN IF THE POSSIBILITY OF SUCH INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS HAS BEEN MADE KNOWN TO SELLER. THE WARRANTY SET FORTH ABOVE IS SOLELY FOR THE BENEFIT OF BUYER. All claims hereunder shall be made by Buyer and not by Buyer’s customers. It shall not be deemed a “defect,” and Seller will not be liable under the warranty in this Section 11, if the goods have been exposed to any: (1) maintenance, repair, or other use that is improper for the good’s ordinary use or otherwise not in compliance with Seller’s instruction; (2) goods alteration, modification or repair by anyone other than Seller or authorized by Seller; (3) damage after shipment to Buyer; (4) improper voltage or wiring; or (5) use of parts that are not 100% compatible with the goods.

12. Buyer Warranty: Buyer shall provide a no defect in materials or workmanship warranty with respect to each product sold to an end customer for a period not less than the then remaining warranty period related to such product and afforded to Buyer pursuant to Section (Seller Warranty) above. Except with respect to the remedies provided by Seller to Buyer under Section (Seller Warranty), any other warranties or representations, or remedies for breach thereof, which Buyer may provide to its end customers shall be the sole responsibility of Buyer, and Seller shall not be bound thereby. Unless Buyer receives Seller’s prior written consent, Buyer will not sell Seller’s products to end-users or intermediaries that sell to end-users that will use or sell the products in a nuclear or in an-aircraft application or for any other application that Seller may notify Buyer of in writing.

13. Damages Amount Limitation: Other than as set forth in Section (Buyer Indemnification) and any breaches of Section  (Confidentiality) hereof, Seller’s cumulative liability for damages to Buyer for any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including, but not limited to, negligence, shall be limited to the total contract price of the goods sold hereunder, plus or minus, as applicable, the amounts of all unpaid accounts payable and receivable between the parties, if any.

14. Damages Limitation: In no event shall Seller’s liability of any kind include any special, indirect, incidental or consequential loss or damage or lost profits, even if Seller shall have been advised of the possibility of such potential loss or damage.

15. Sole Remedy: The sole and exclusive remedy for breach of any non-warranty obligation of Seller and the sole remedy for Seller’s liability of any kind (including liability for negligence) with respect to the goods and services provided to Buyer shall be to use all commercially reasonable efforts to promptly cure such breach. Buyer must commence any suit for a cause of action arising hereunder within one year from the date in which the facts that gave rise to the cause of action first occurred.

16. Buyer Indemnification Buyer shall hold harmless, indemnify and defend (at Seller’s request) Seller for any and all damages, liabilities, costs and expenses (including any costs of litigation, including but not limited to, attorneys’ fees and any other costs and expenses), fines, or losses in connection with any threatened or actual claims, actions, demands, investigations, or suits, including, but not limited to, claims or suits by third parties, arising out of any of the following: (a) Buyer’s negligent or willful acts, or those of its employees and/or agents, (b) such goods being repaired or altered by persons other than Seller (unless expressly authorized in writing by Seller), (c) in the event that Buyer modifies, or combines with any non-Seller goods, any of the goods purchased from Seller, and such modification or combination results in the actual or alleged infringement of any intellectual property rights of any third party, (d) from goods produced by Seller according to Buyer’s specifications, (e) any violations of export control laws by Buyer, or (f) Buyer’s breach of any provision in these T&Cs.

17. Confidentiality: “Confidential Information” means any of Seller’s business information, specifications and all related writings, drawings, designs and similar works or any other information which is disclosed by Seller and labeled or marked as confidential, proprietary or its equivalent, or oral or visual information that is designated confidential, proprietary or its equivalent at the time of its disclosure. All Confidential Information shall be the exclusive property of Seller, and Seller retains all its right, title and interest. Buyer agrees to use Confidential Information for the exclusive purpose of performance under the Purchase Order and not to disclose or provide any Confidential Information to any third party and to take all necessary measures to prevent any such disclosure by its employees, agents, contractors or consultants. Upon request of Seller or completion of the Order, Buyer shall return all Confidential Information to Seller and provide certification of such return.

18. Tooling: Charges made for tools, dies, gauges, jigs, fixtures or equipment made or acquired by Seller in connection with the work do not convey title to or any proprietary interest in such tools. All such tools will remain the exclusive property of Seller.

19. Force Majeure: Seller shall not be liable for any failure to perform this agreement when such failure is due to circumstances beyond its control. Circumstances beyond the control of Seller shall be deemed to include, but shall not be limited to, acts of God, governmental action, accidents, labor trouble, and inability to obtain materials, equipment or transportation.

20. Waiver: No oral statements, recommendations or assistance given by a representative and/or distributor of Seller to Buyer or its representatives in connection with the use of the goods shall constitute a waiver by Seller of any of the provisions hereof, or affect Seller's liability herein.

21. Arbitration: Except for any action where the sole relief sought is an injunction, any controversy or claim arising out of or relating to these T&Cs, or the making, performance or interpretation thereof, including without limitation alleged fraudulent inducement thereof, shall be settled by binding arbitration in the city of Seller’s choosing in the state of Seller’s business address as shown on the Response, by one arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon any arbitration award may be entered in any court having jurisdiction thereof.

22. Representation of Buyer: Buyer is duly organized, validly existing and in good standing under the laws of the state of its formation and has full corporate power and authority to own, operate or lease the properties and assets now owned, operated or leased by it and to carry on its business as currently conducted. Buyer is duly licensed or qualified to do business and is in good standing in each jurisdiction in which such licensing or qualification is necessary. The execution and delivery by Buyer of this Agreement, the performance by Buyer of its obligations hereunder and thereunder and the consummation by Buyer of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of Buyer, and this Agreement constitutes a legal, valid and binding obligation of Buyer enforceable against Buyer in accordance with its terms.

23. Risk of Loss: Commencing at the time of delivery, Buyer shall bear all risk of loss, damage, destruction, theft and condemnation to or of the Equipment from any cause whatsoever.

24. Events of Default: Each of the following events is an “Event of Default” under this Agreement: (a) if Buyer fails to pay when due any installment of the purchase price or any other amount under this Agreement; (b) if Buyer defaults in the observance or performance of any other term, covenant or condition of Buyer under this Agreement and Buyer shall fail to remedy such default within ten days after notice by Seller to Buyer of such default; (c) if Buyer's interest or any portion thereof in this Agreement devolve on or pass to any person, whether by operation of law or otherwise; (d) if Buyer: (i) does not, or is unable to, or admits in writing its inability to, pay its debts as they become due; (ii) commences or institutes any case, proceeding or other action seeking relief on its behalf as debtor, or to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition or other relief with respect to it or its debts under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors; (iii) commences or institutes any case, proceeding or other action seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property; or (iv) makes a general assignment for the benefit of creditors; (e) if a receiver, trustee, custodian or other similar official is appointed for any substantial part of the assets of Buyer which appointment is not vacated or stayed within 30 days; (f) if Buyer sells, transfers or disposes of all or substantially all of its assets, or merges or consolidates with any other entity; or (g) a breach of any representation or warranty of Buyer.

25. Headings: The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

26. Entire Agreement: This Agreement, including any exhibits and schedules, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

27. Amendment and Modification: No amendment to this Agreement is effective unless it is in writing and signed by each party to this Agreement.

28. Cumulative Remedies: All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.

29. Assignment: Buyer may not assign any of its rights under this Agreement without the prior written consent of Seller and provided that such assignment shall not relieve Buyer of its obligations under this Agreement, and Buyer shall remain primarily liable under this Agreement. Any purported assignment in violation of this Section is null and void.

30. Successors and Assigns: This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective successors and permitted assigns.

31. No Third-party Beneficiaries: This Agreement benefits solely the parties to this Agreement and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any third party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

32. Waiver of Jury Trial: Each party acknowledges and agrees that any controversy that may arise under this Agreement, including any exhibits attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits attached to this Agreement, or the transactions contemplated hereby.

33. Drafting: No provision of this Agreement shall be interpreted for or against any party hereto on the basis that such party was the draftsman of such provision, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

34. Counterparts: This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together is deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

35. Miscellaneous: All provisions set forth herein regarding warranty, confidential information, indemnification, liability and limits thereon, and any other provisions that survive by their terms will survive any termination or expiration of any Response delivered in connection herewith pursuant to the terms of such sections. In the event that any provision of these terms is held to be illegal, invalid or unenforceable under any present or future law, rule or regulation, such provision shall be deemed stricken from these T&Cs, but such illegality, invalidity or unenforceability shall not invalidate any of the other provisions of these T&Cs. Buyer represents and covenants that it has, and will continue to, comply with all laws and regulations related to the goods sold hereunder, including, but not limited to, export control laws. This sale transaction shall be governed, construed and enforced solely by the laws of the State of Seller’s business address as shown on the Response. The United Nations Convention on the International Sale of Goods shall not be applicable to these T&Cs. The relationship of Buyer and Seller is that of independent contractors.

36. California Customers: Midland Metal does not guarantee that all products meet California environmental laws of Proposition 65. It is the sole responsibility and liability of the Midland distributor to order products for use in California that comply with California laws.

Copyright Protection: No reproduction either in whole or in part may be made from this catalog without the written permission from us. Any reproduction of this catalog constitutes a violation of the copyright laws of the United States of America. Midland Marketing Inc © 2017