Standard Terms and Conditions of Sale
In this document (“Terms and Conditions”):
(a) “Application” means the application by the Customer to LST for commercial credit;
(b) “Contract” means the contract formed between LST and the Customer by an Order accepted by an
Order Acknowledgment and these Terms and Conditions;
(c) “Customer” means the person placing the Order with LST;
(d) “Goods” means any goods, products, services or materials to be supplied by LST;
(e) “LST” means LiteSteel Technologies America LLC;
(f) “Order” is defined in section 1(a); and
(g) “Order Acknowledgment” is defined in section 1(b).
1. Orders, Order Acknowledgments and Contracts
(a) An order or an offer to purchase can be made by the Customer in writing or verbally (“Order”).
(b) An Order is accepted when the Customer receives from LST an order acknowledgment in writing or if writing is not received, acknowledgment verbally or delivery, whichever first occurs (“Order Acknowledgment”).
(c) When an Order is accepted by an Order Acknowledgment the Contract will be wholly documented by (in descending order of precedence) any specific term(s) agreed in writing, the Order Acknowledgment and these Terms and Conditions.
(d) Previous dealings between LST and the Customer shall not have any effect on the Contract.
(e) Trade custom and/or trade usage is superseded by the Contract and shall not be applicable in the interpretation of the Contract.
(f) A Contract constitutes the entire agreement
between LST and the Customer with respect to the Goods supplied under the Contract. All prior negotiations, proposals and correspondence are superseded by the Contract, and any terms and conditions proposed by the Customer which supplement, conflict with, or are in any way different to, the Contract are hereby rejected by LST.
2. Price
(a) Unless otherwise agreed in writing, the price charged for the Goods shall be exclusive of any freight and insurance (and related costs), taxes, and customs duties.
(b) Customer agrees to pay all applicable taxes, including without limitation sales, use, and excise taxes, and all applicable customs duties.
(c) For the purposes of determining prices under the Contract, all lengths of Goods shall be rounded up to the next whole foot.
(d) Notwithstanding any provision in the Contract to the contrary, LST may increase the price of Goods after an Order Acknowledgment and prior to delivery of the Goods if the price increase results from an increase in the price of any inputs which comprise part of the Goods.
3. Shipment and Risk of Loss
Shipment shall be made F.O.B. LST’s point of delivery to the carrier, and title and risk of loss shall pass to the Customer upon delivery of Goods to the carrier. After delivery to the carrier, LST shall have no further responsibility with respect to shipment. Any costs incurred by LST due to any wrongful failure by the Customer to accept the Goods at time of delivery will be reimbursed by the Customer to LST.
4. Payment
Payment for the Goods must be made in full (without any setoff) and received by LST no later than thirty (30) days after the date of the invoice, or as otherwise identified by LST on any statement or account or invoice. Payment is only received by LST when it receives cash or when the proceeds of other methods of payment are credited and cleared to LST’s bank account. The Customer shall pay a late fee of 1.5% per month on all overdue amounts.
5. Security Interest
The Customer hereby grants to LST a security interest in the Goods to be delivered to secure the payments of the Customer’s obligations to LST. The Customer hereby grants LST the authority and power of attorney to execute such financing statements and related documents on the Customer’s behalf and in the Customer’s name, and to perform such other acts as are necessary to perfect LST’s security interest in the Goods to the fullest extent provided by law.
6. Default
(a) The Customer will be in default if:
i) the Customer breaches the Terms and Conditions;
ii) payment for the Goods has not been received by LST by the due date of payment;
iii) the Customer makes an assignment for the benefit of its creditors, becomes the subject of any proceeding by or against the Customer (whether voluntary or involuntary) in bankruptcy or insolvency or winding up or for the appointment for a liquidator, or receiver, or the Customer becomes unable to pay its material debts as they become due; or
iv) LST forms the opinion that the Customer’s credit worthiness or credit standing alters from that indicated in its Application.
(b) If the Customer defaults, LST may:
i) treat the whole of the Contract and any other Contract with the Customer as repudiated and sue for breach of contract;
ii) refuse to supply any Goods to the Customer;
iii) without notice to the Customer withdraw or vary any credit LST has provided to the Customer;
iv) without notice to the Customer make all monies owing by the Customer to LST on any account immediately due and payable; and/or
v) exercise all rights provided by law to a secured creditor in respect of Section 5.
7. Credit
(a) LST may grant the Customer credit upon the Terms and Conditions on the basis of the Application and such other documents and information as may be required by LST.
(b) LST will only supply Goods to the Customer upon the payment terms set forth in Section 4.
(c) The granting of credit does not oblige LST to extend any particular amount of credit to the Customer.
(d) The Customer must notify LST in writing if there is any change in the shareholding or ownership of the Customer or any material change in the Customer’s financial position.
8. Intellectual Property
(a) The Customer warrants to LST that all documents provided by the Customer are accurate and that LST is entitled to use all such documents for the purposes of the Contract and that such use not infringe any third party’s intellectual property rights.
(b) The Customer shall indemnify, defend, and hold harmless LST and its affiliates and parent, and their directors, officers, employees, and agents, against all claims and all losses and damages incurred by LST as a result of documents provided by the Customer to LST for the purposes of or in the course of the supply of the Goods breaching a third party’s intellectual property rights.
(c) LST reserves the right to control, actively participate in, or monitor, through its own counsel, at the Customer’s expense, any claim of infringement of intellectual property rights or other such action brought against it.
(d) All intellectual property rights (including without limitation patents, copyrights, and trademarks) as well as know-how incorporated into any Goods and documents, tools, specifications, or other information transmitted in connection with the Contract shall remain the sole property of LST.
9. Confidentiality
If the Customer receives any confidential information from LST, the Customer must take reasonable steps to protect such information and may not use or disclose such information. Upon LST’s request, the Customer shall immediately return to LST any documents, drawing, other technical data, and other confidential information.
10. Force Majeure
The parties will be excused from their respective performances hereunder (except Customer’s payment obligations) if performance is prevented or delayed due to acts of God, war, terrorism, riot, fire, labor trouble (including strikes, lockouts and labor shortages), plant shutdowns, unavailability of materials or components, unavailability of or delays in transportation, insufficient production capacity, unavailability or shortage of fuel products, explosion, accident, compliance with governmental requests, laws, regulations, orders or actions, or other unforeseen circumstances or causes beyond such party’s reasonable control (“force majeure”). If such event affects LST, LST may, without liability, allocate and distribute Goods among its customers in such proportions as LST, in its sole discretion, determines.
11. Limited Warranty
(a) LST warrants to the Customer and the original owner of the structure (and not to any other person) in which the Goods are installed that the Goods will be free from defects in materials and workmanship for the life of the structure in which they are installed and will perform (subject to the exclusions set forth herein) according to the specifications provided in the applicable Contract or published Goods information. The warranty set forth in this section is applicable only if the Goods are installed in structures located in the United States of America in compliance with all applicable building codes and are installed and maintained according to LST’s published product information and installation guides applicable to the Goods.
(b) Any claim by the Customer made under the warranty set forth in this section must be made in writing within thirty (30) days of the Customer’s discovery of the defect upon which such claim is based.
(c) The warranty set forth in this section does not cover (i) nonconformities or damage caused by misuse, improper handling or storage; (ii) damage caused by installation, installation techniques or maintenance; (iii) damage caused by Acts of God; or (iv) damage resulting from fire or from the acts of third parties beyond our control. Additionally, the warranty is void if the defect or nonconformity of the Goods resulted from damages occurring after delivery of the Goods, or if the structure is materially altered or modified after original installation of the Goods.
(d) Additionally, the warranty set forth in this section does not cover the workmanship and/or certification of the architects, engineers, builders, contractors or workmen employed by the purchaser or homeowner, and does not cover or guarantee the workmanship of the installation of the Goods. LST assumes no responsibility for the accuracy, completeness or quality of work performed by persons or entities not employed by LST.
(e) LST’S SOLE OBLIGATION IN THE EVENT OF A BREACH OF THIS LIMITED WARRANTY SHALL BE, AT THE OPTION OF LST, THE COST OF REPLACEMENT OF THE DEFECTIVE GOODS AS SOON AS REASONABLY PRACTICABLE, THE REPAIR OF THE DEFECTIVE GOODS, OR THE REPAYMENT OF THE ORDER PRICE OF THE DEFECTIVE GOODS, PROVIDED THAT IN NO EVENT SHALL LST BE OBLIGATED TO REMOVE DEFECTIVE GOODS FROM OR INSTALL REPLACEMENT GOODS INTO A STRUCTURE. LST’S LIABILITY FOR BREACH OF WARRANTY SHALL NOT EXTEND BEYOND THE DEFECTIVE GOODS TO ANY OTHER GOODS THAT ARE PART OF AN ORDER OR OTHERWISE.
(f) THE WARRANTY SET FORTH HEREIN IS EXCLUSIVE AND IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY. LST DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND NOT SET FORTH HEREIN (WHETHER ARISING BY IMPLICATION OR BY OPERATION OF LAW) WITH RESPECT TO THE GOODS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS AS TO MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
12. Remedies
IN NO EVENT SHALL LST BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNATIVE, OR CONSEQUENTIAL LOSS OR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, IN CONTRACT OR IN TORT REGARDLESS OF THE CAUSE OF SUCH DAMAGES. “INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL LOSS OR DAMAGES” INCLUDES WITHOUT LIMITATION ANY LOSS OF INCOME, PROFIT, OR BUSINESS; ANY LOSS OF GOODWILL OR REPUTATION; OR ANY LOSS OF VALUE OF INTELLECTUAL PROPERTY.
13. Returns
The Customer may return conforming or non-defective Goods (“Returned Goods”) only if the Customer: (i) receives written authorization from LST to do so (which LST may withhold in its sole discretion); (ii) exchanges the Returned Goods for other products sold by LST (“Replacement Products”) that are of equal or greater value than the Returned Goods; (iii) ships prepaid the Returned Goods to LST; (iv) pays all freight to ship the Replacement Products to the Customer; (v) pays a restocking fee of US$1.00 per foot of the Returned Goods; and (vi) pays any difference in price between the Replacement Goods and the Returned Goods. Except as required by law, LST will be under no obligation to accept Goods returned for any reason and in no event shall the Customer be entitled to any refund of any purchase price or any portion thereof.
14. Indemnity
In addition to the rights granted in Sections 8(b) and 8(c), the Customer shall indemnify, defend and hold harmless LST and its affiliates and parents, and their directors, officers, employees, and agents, from all liability, damage, loss, claims, and action (including reasonable attorneys’ fees and expenses) arising from any suit or legal proceeding of any kind by any third party, including without limitation administrative proceedings and arbitration, arising out of or incident to (i) any breach of, or failure to satisfy, the covenants, representations or warranties set forth in the Contract; or (ii) any criminal, fraudulent, or negligent conduct or wilful misconduct by the Customer or any of its employees, agents, subcontractors, or representatives.
15. Waiver
LST waives a right under the Contract only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
16. Severance
If a provision of the Contract shall be held invalid, illegal, or unenforceable for any reason, the validity, legality, and enforceability of such provision in every other respect and of the remaining provisions of the Contract shall not be impaired.
17. Modification
No change or modification to these Terms and Conditions shall be binding on LST unless in writing and signed by LST.
18. Costs
The Customer must pay LST all costs and expenses incurred by LST in connection with the Contract including legal expenses and costs incurred in the recovery of monies owing by the Customer to LST or in otherwise enforcing LST’s rights against the Customer under the Contract.
19. Applicable Law
The Contract is governed by the laws of the state in which the address of LST specified in the Contract is located. The courts of that jurisdiction (and the courts exercising appellate jurisdiction over them) have exclusive jurisdiction in connection with the Contract, and the parties submit to the jurisdiction of those courts. The Convention on Contracts for the International Sale of Goods shall not apply to the Contract.
20. Assignment
LST may without notice to the Customer assign the Contract to any person. The Customer may not assign the Contract without the prior written consent of LST.
21. Measures
(a) Any and all statements made by LST as to weight, length, quantity or other characteristics of Goods are approximate and LST may supply Goods on an actual or calculated basis.
(b) A calculated basis will be in accordance with the applicable governmental or generally acceptable industry standards.
(c) LST’s statements as to weight, length, quantity or other characteristics are final and LST is not liable for any errors in such statements unless the Customer gives LST:
i) written notice of any error within 14 days of delivery; and
ii) a reasonable opportunity to examine and retest the Goods before they are used or dealt with.
22. Shortages
(a) The Customer will inspect and check all Goods received as soon as practicable upon unloading. No claim by the Customer for shortages of Goods may be made unless such claim is notified to LST with fortyeight (48) hours of such inspection.
(b) LST will endeavor to rectify any shortages as soon as practicable after receiving notice but will not suffer any liability from or in respect of such rectification.
23. Equitable Remedies
The Customer acknowledges and agrees that damages may be an inadequate remedy in the event of a breach of the Contract by the Customer and that any such breach may cause LST great and irreparable injury and damage, and that LST may be entitled, without waiving any additional rights or remedies otherwise available at law, at equity, or by statute, to seek injunctive and other equitable relief in the event of a breach or intended or threatened breach of the Contract. No remedy referred to in the Contract is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to in the Contract or otherwise available under law.
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