Steele Solutions Inc
Terms & Conditions of Sale
1. Controlling Provisions: These terms and conditions of sale (these “Terms”), together with the sales quotation or similar document (each a “Sales Document”) referencing these Terms (collectively, this “Contract”) constitutes an offer by Steele Solutions, Inc. (“Company”) to provide the goods and/or services described in such Sales Document to the party to whom the Sales Document is addressed (“Buyer”). Any goods referenced in the Sales Document are referred to herein as “Products”, and any services referenced in the Sales Document are referred to herein as “Services”. If this Contract is deemed an acceptance of a prior offer by Buyer, such acceptance is limited to the express terms contained herein. Buyer’s acceptance of this Contract is limited to the terms contained in this Contract, and Company hereby objects to and rejects any additional, different or varying terms proposed by Buyer, unless Company expressly agrees to such terms in writing. Such proposal of additional, different or varying terms by Buyer shall not operate as a rejection of Company’s offer, and Company’s offer shall be deemed accepted without such additional, different or varying terms. This Contract constitutes the final expression of the terms between Company and Buyer regarding the Products and/or Services (as applicable) and is the complete statement of those terms. Any terms or understandings not contained in this Contract shall have no force or effect unless made in writing and signed by Company and Buyer.
2. Acceptance: Buyer shall be deemed to have accepted this Contract upon the earliest of the following to occur: (a) Company’s receipt of a copy of this Contract signed by Buyer or any other written acceptance of this Contract by Buyer; (b) Buyer’s payment of any amounts due under this Contract; (c) Company’s delivery of the Products and/or Services (as applicable); or (d) any other event constituting acceptance under applicable law.
3. Orders: Buyer’s order of Products and/or Services from Company shall be subject to the provisions of this Contract. Buyer’s order must be made in a form acceptable to Company. Company reserves the right to reject any orders for any reason in its sole discretion. Company reserves the right to correct clerical or similar errors relating to price or any other term shown on any invoice.
4. Changes, Cancellations, and Returns: Buyer may not change or cancel an order that has been accepted by Company, unless Company agrees in writing. Company reserves the right to change the price, terms of payment and shipment dates for any Products and/or Services affected by any changes to any order which are requested by Buyer and approved by Company in writing. When Company consents to the cancellation of any order, Buyer shall be responsible for all expenses incurred by Company related to such cancelled order. Buyer may not return any Products to Company unless Company agrees in writing.
5. Delivery of Products: If the Sales Document provides for the delivery of Products, then the following provisions of this Section 5 shall apply: (a) Unless otherwise agreed in writing by Company, Company shall deliver the Products in accordance with the following delivery terms: F.O.B. (as defined in the Uniform Commercial Code, as adopted in Wisconsin) Company’s designated facility (the “Delivery Point”). All risk of loss, damage or delay, and title to the Products shall pass from Company to Buyer upon delivery to Buyer or its designated carrier at the Delivery Point. All quoted shipment and/or delivery dates and/or periods are approximate. Time for delivery shall not be of the essence. Delivery dates given by Company are based on prompt receipt of all necessary information regarding the order. Company’s failure to meet any shipment or delivery date does not constitute a cause for cancellation and/or for damages of any kind. Unless otherwise stated in this Contract, Buyer shall be responsible for picking up the Products at the Delivery Point and for transporting such Products to Buyer’s intended destination. Claims for shortages or other errors must be made in writing to Company within thirty (30) days after receipt of the shipment by Buyer or its carrier, and failure to give such notice shall constitute unqualified acceptance of such shipment and a waiver of all such claims by Buyer. (b) Any delay in delivery due to causes beyond Company’s reasonable control including those events listed in Section 18 below, due to any priorities or allocations necessitated by governmental orders or regulations, or due to any causes specified in the following sentence, shall extend the term of delivery by a period equal to the length of such delay. In the event of delay in delivery requested by Buyer or caused by Buyer’s (i) failure to supply adequate instructions, (ii) failure to arrange for pickup, (iii) failure to supply or approve necessary data in a timely manner, (iv) requested and approved changes, or (v) failure to provide documents required for Company to effect delivery, Company shall store all Products at Buyer’s risk and expense, and Buyer shall pay all storage costs and expenses upon Company’s demand.
6. Delivery of Services: If the Sales Document provides for the delivery of Services, then the following provisions of this Section 6 shall apply: (a) Company shall provide to Customer the Services described in the Sales Document. Company shall use reasonable efforts to meet any performance dates specified in the Sales Document, but such dates shall be estimates only. (b) Buyer shall: (i) cooperate with Company in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Company, for the purposes of performing the Services; (ii) respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform the Services; and (iii) provide such Buyer materials and information as Company may request to carry out the Services and ensure that such Buyer materials and information is complete and accurate in all respects. (c) If Company’s performance of Services is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Company shall not be deemed in breach of its obligations under this Contract or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
7. Prices; Taxes; Permits: Prices for the Products and/or Services, as applicable, shall be as stated in the Sales Document. Company reserves the right to adjust Product prices, in each case upon thirty (30) days’ advance notice to Buyer, to account for increases in raw materials costs incurred by Company prior to delivery. All prices are stated, and shall be payable, in U.S. Dollars. All quotations from Company for the Products and/or Services shall automatically expire thirty (30) days from the date of the quotation unless the quotation states otherwise or is withdrawn by Company. Prices do not include applicable taxes, all of which, if any, shall be added to the invoice.
8. Terms of Payment: Unless otherwise agreed in writing by Company, the terms of payment for Products supplied hereunder are as follows: (a) a 20% downpayment must made at the time of the order; and (b) the remaining 80% shall be due net thirty (30) days from the date of Company’s invoice (which will be issued on or after the date of shipment). Company may assess a 1.5% finance charge on past due amounts hereunder of 1.5% per month or, if less, the maximum rate allowable by applicable law. In addition, if Buyer does not pay Company any amount due under this Contract or if Buyer defaults in the performance of this Contract, Company may, without liability to
Buyer and without prejudice to Company’s other lawful remedies terminate Company’s obligations under this Contract; (b) declare immediately due and payable all of Buyer’s obligations to Company; (c) change credit terms with respect to any further work; (d) suspend or discontinue any further work; and/or (e) enter onto Buyer’s premises and repossess the Products. Buyer agrees to reimburse Company for all costs and fees including, but not limited to attorneys’ fees and repossession fees, incurred by Company in collecting any amounts owed by Buyer to Company. Buyer shall not set off amounts due to Company against claims it may have against Company. Buyer may not impose back charges, of any kind, without Company’s prior written authorization. Buyer agrees that Company may exercise all available lien rights it may have on delinquent accounts. Unless expressly agreed to otherwise by the parties, Company shall issue invoices to Buyer for Services furnished hereunder upon completion of such Services. Buyer shall pay such invoice within thirty (30) days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. Buyer agrees to reimburse Company for all actual, documented and reasonable travel and out-of-pocket expenses incurred by Company in connection with the performance of the Services that have been pre-approved in writing by Buyer.
9. Warranty Terms for Products; Limitations: If Products are furnished hereunder, then the following provisions of this Section 9 apply: (a) Company warrants to Buyer that the Products supplied hereunder will be free from structural defects in material and workmanship. The warranty period for this limited warranty shall be one (1) year from the date of shipment. This LIMITED WARRANTY SHALL NOT EXTEND to (i) defects caused by any specifications or designs supplied by Buyer; or (ii) parts or other materials provided by Buyer. There is NO WARRANTY in cases of repairs or alterations of Products not authorized by Company in writing, damage in transit, negligence, abuse, abnormal usage, misuse, accidents, normal wear and tear, damage due to environmental and natural elements, failure to follow Company’s instructions or improper installation, storage or maintenance. Company’s SOLE AND EXCLUSIVE obligation under this limited warranty (and Buyer’s sole and exclusive remedy) will be, upon prompt written notice by Buyer during the Warranty Period of any breach, to either, at Company’s option: (i) repair or replace without charge any defective Product; or (ii) credit to Buyer or refund the purchase price for such defective Product paid by Buyer. (b) THE EXPRESS WARRANTIES IN SECTION 9(a) ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER EXPRESS AND IMPLIED WARRANTIES ARE HEREBY DISCLAIMED. Any oral or written description of the Products is for the sole purpose of identifying the Products and will not be construed as an express warranty. Any assistance Company provides to or procures for Buyer outside the limitations of this Section will not constitute a waiver of the limitations of this Section.
10. Warranty Terms for Services; Limitations: If Services are furnished hereunder, then the following provisions of this Section 10 apply: (a) Company warrants to Customer that it will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its Service-related obligations under this Contract. (b) Company shall not be liable for a breach of the warranty set forth in Section 10(a) above unless Customer gives written notice of the defective Services, reasonably described, to Company within ten (10) days after Company’s performance of the Services. Subject to the preceding sentence, Company shall, in its sole discretion, either: (i) repair or re-perform such Services (or the defective part); or (ii) credit or refund the price paid for such defective Services. (c) THE REMEDIES SET FORTH IN SECTION 10(b) ABOVE SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10(a) ABOVE. (d) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10(a) ABOVE, COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY: (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (III) WARRANTY OF TITLE; OR (IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
11. Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, WHETHER FOR BREACH OF WARRANTY, FOR BREACH OR REPUDIATION OF ANY OTHER TERM OF THIS CONTRACT, OR FOR LIABILITY BASED ON NEGLIGENCE OR ANY OTHER THEORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY’S AGGREGATE LIABILITY WITH RESPECT TO THIS CONTRACT SHALL BE LIMITED TO THE AMOUNT PAID TO COMPANY BY BUYER FOR THE PRODUCTS AND/OR SERVICES FURNISHED HEREUNDER. The foregoing
limitations do not apply to liability arising out of the recklessness or willful
misconduct of Company.
12. Indemnification: Buyer shall indemnify, defend and hold Company harmless from and against any and all liabilities, losses, fines, penalties, damages and expenses, including, without limitation, attorneys’ fees, incurred by Company which arise out of any claim that any drawings and/or specifications furnished by Buyer infringe or constitute a misappropriation of any third-party intellectual property rights. Buyer shall also indemnify, defend and hold Company harmless from and against any and all liabilities, losses, fines, penalties, damages and expenses, including, without limitation, attorneys’ fees, incurred by Company which arise out of any third-party claim for bodily injury, death and/or property damage caused by or resulting from any defect in drawings and/or specifications furnished by Buyer.
13. Intellectual Property: Nothing in this Contract will be construed as a grant to Buyer of any rights in any trademarks or other intellectual property of Company.
14. Permits: The prices hereunder do not include the cost for obtaining the appropriate building or structure permits. If a specific code has not been requested by Buyer, the quote has been prepared using Company’s standard features which may or may not be in accordance with local codes.
15. Drawings and Engineering Data: All engineering data, design information and engineering and shop drawings (the “Engineering Information”) used in the performance of this Contract are and shall remain Company’s property. The Engineering Information represents a significant investment on the part of Company and as such is considered proprietary and confidential. Buyer shall not copy, reproduce, distribute, publish or communicate to any third party such data without the prior, written permission of a properly authorized representative of Company.
16. Floor Slab Requirements: Where a project involves a floor slab, Company is not responsible to determine if the floor is capable of resisting induced loads unless otherwise stated in the quotation. Where a project involves the placement of columns, Buyer agrees to provide Company with advance written notice of any embedded obstructions that could interfere with column placement.
17. Guarding Of Elevated Structures: Company recommends that structures elevated 24″ or more above the floor include proper guarding (as protection from falling) on all exposed edges along with the installation of appropriate means of egress from such guarding. Where Buyer elects to install such guarding, Company’s Sales Document shall include the guarding items requested by Buyer. Buyer agrees that such quotation does not provide an opinion on whether such guarding complies with state or local laws and, therefore, Buyer is required and responsible for supplying Company with any code requirements and/or agrees to provide a design and location which complies with such code. Company disclaims any and all responsibility with regard to such guarding.
18. Force Majeure: Except with respect to payment obligations under this Contract, neither party shall be responsible for any nonperformance of this Contract or delay in the performance of this Contract where such nonperformance or delay has been caused by an act of God, war, major disaster, terrorism, third-party criminal acts, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding available supply or any other cause beyond the party’s control. In the event of any delay in delivery, failure to fill orders or other default or damage caused by any of the foregoing, Company may, at its option and without liability, prorate its deliveries, cancel all or any portion of this Contract to the extent affected by the event of force majeure and/or extend any date upon which performance is due hereunder.
19. Governing Law: This Contract shall be governed by and construed according to the laws of Wisconsin, without regard to conflicts of laws principles. Neither this Contract nor any sales hereunder will be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
20. Miscellaneous: This Contract constitutes the entire agreement between the parties with respect to Buyer’s purchase of the Products and/or Services and supersedes all other agreements or communications, written or oral, which may be deemed to be inconsistent with it. This Contract may not be
amended or altered except by a writing signed by Company.
If any provision of this Contract is held to be invalid or unenforceable for any reason, the parties acknowledge and agree that such invalidity or unenforceability (a) shall not affect any other provision of this Contract, (b) the remaining terms, covenants and conditions hereof shall remain in full force and effect, and (c) any court of competent jurisdiction may so modify the objectionable provision as to make it valid and enforceable. The failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of this Contract shall not be construed as a waiver or relinquishment of any right granted hereunder or the future performance of such term, covenant or condition. All of Company’s remedies herein are cumulative and not exclusive of any other remedies available to Company at law, by contract or in equity.