Terms & Conditions

1. ACCEPTANCE OF PURCHASE ORDERS

Sales of any goods or any related services (collectively, “Products”) referenced in Customer’s written Purchase Order to US Industrial Corp (hereinafter referred to as “Supplier”) (“Purchase Order”) is expressly conditioned upon the terms and conditions set forth below. Other than as specifically provided in a separate written agreement between Supplier and Customer, any additional or different terms specified or referenced in Customer’s Purchase Order are hereby excluded and shall not be deemed effective or binding unless expressly agreed to in writing by an authorized representative of Supplier. These terms and conditions represent the entire agreement between the Customer and Supplier pertaining to the subject matter of this Purchase Order and shall supersede all prior oral and written agreements, proposals, communications, and documents. No Purchase Order placed by Customer shall be deemed accepted unless or until Supplier issues a written acknowledgement. Any amendment, change order, revision, or termination to an already-accepted Purchase Order shall be subject to acceptance by an authorized representative of Supplier.

2. PRICES, TAXES

2.1. The price set for in Supplier’s Quotation (“Price”) are in United States Dollars. Nothing set forth in Customer’s Purchase Order shall modify or amend the quoted Prices, quantities, and/or the scope of Products offered, unless such modification or addition is agreed to in writing by Supplier prior to the Purchase Order.

2.2. The prices are exclusive of any taxes (including, without limitation, sales, use, value added, goods and services, business, property (real or personal, tangible or intangible), license, documentation, registration, import, export, excise, franchise, stamp, or other tax), custom fees or tolls, levy, impost, withholding, fee, duty or other charge of any nature imposed by any governmental authority or other tax authority in any jurisdiction, and any and all fines, penalties, additions to tax, interest and other charges relating thereto (collectively, “Taxes”). All Taxes shall be paid by Customer in addition to the Price. If any payment by the Customer is subject to withholding tax, the Customer agrees to increase the amount of any payment which is subject to a withholding or pay an additional amount as is necessary to ensure that Supplier receives the same amount it would have received if there had been no withholding. Customer shall deliver any certifications and other documents required to demonstrate eligibility and to benefit from any exemption or other relief from any Tax.

3. PACKAGING, SHIPPING

3.1. Supplier shall pack all Products in accordance with its standard commercial practices. If Customer has any special shipping or handling requirements, Customer shall notify Supplier in a timely manner regarding any such special requirements, and Customer shall be responsible for any increase in cost to pack the Purchase Order.

3.2. Unless otherwise stated, the Price does not include any shipping or handling charges, and Customer shall incur both the cost and the risk for bringing the Products to their final destination.

3.3. In the absence of specific instructions, Supplier shall select the carrier and, at its discretion, may ship “collect”, prepaid or subject to invoice payment terms, but shall not be deemed to have assumed any liability in connection with the shipment, nor shall the carrier be construed as an agent of Supplier.

3.4. For estimating the number of trucks or the space requirement of a truck allow 35,000 pounds per truck. When materials are ready to ship, Customer must allow the pickup of materials within (5) business days from the factory. Delays beyond five days will be billed at $300 per week/per load, for the storage of materials, which may be increased at the discretion of Supplier. Customer must allow the delivery of materials during normal business hours (8AM – 5PM) or pay for special delivery.

3.5 Customer is responsible for the unloading of all materials.

4. DELIVERY, TITLE, AND RISK OF LOSS

4.1. Supplier’s quoted delivery schedule represents its best estimate and is based on current schedules and workload. Shipment and/or delivery time is estimated lapsed time from receipt of Customer’s Purchase Order and/or signed approval drawings when these are requested or when in the opinion of Supplier, customer design approval is required prior to fabrication. All such estimates of time are contingent upon Acts of God, strikes, lockouts, fires, accidents, delays of carriers, delays caused by any governmental regulations now effective or that may become effective, or any other delays reasonably unavoidable or beyond Supplier’s control. Supplier shall have no liability for delay or any damages or losses sustained by Customer as a result of such estimate not being met. Partial deliveries shall be permitted.

4.2. In the event of unforeseen delays in shipment requested by Customer, or resulting from acts of Customer, its agents, employees, or contractors other than Suppliers, material will be invoiced in reasonable proportions upon completion of fabrication.

4.3. Unless otherwise agreed to by Supplier in writing, delivery shall be deemed to have occurred FOB origin (Incoterms 2010) for domestic shipments.

4.4. Title and liability for loss or damage to the Products shall transfer from Supplier to Customer upon delivery of the Products at FOB origin for domestic shipments.

4.5 Customer is solely responsible for additional transportation costs if Customer requests/requires a change in the shipping location of the Products other than what is stated on the Purchase Order after the Products have left Supplier’s control.

5. PAYMENT

5.1 Unless agreed otherwise, our payment terms are as follows:
• 100% Due on placing order.
The above payment terms will not be removed or cancelled due to a cancellation by Customer after such payment term is completed (e.g., if Customer cancels an order after the start of installation, but before it is completed, the Customer will be charged the full cost of materials, plus freight, plus 100% of the cost of installation).

5.2 Supplier reserves the right to assess interest on any late payments from the date due until receipt of payment in full at the lesser of (a) one and one-half percent (1.5%) per month compounded monthly, or (b) the maximum rate permitted by law, and to charge Customer for any collection or litigation expenses, including reasonable attorney’s fees incurred by Supplier in the collection of late payment. In addition to any remedies under law, Supplier may at its sole discretion suspend future deliveries or services until all delinquent payments due are received. Supplier may require an advance payment or milestone payments prior to beginning performance of the Purchase Order.

5.3 All payments hereunder shall be paid without any deductions, set-off, or counter-claims including for any Taxes.

5.4 The Deposit is nonrefundable. In the event that Customer cancels its order for any reason, the Deposit shall remain with Supplier.

6. FORCE MAJEURE AND EXCUSABLE DELAY

6.1. Supplier shall not be liable for any damages of any kind for delayed or non-performance if such delayed or non-performance is due directly or indirectly to: (a) Customer, including omissions or failure to act on the part of Customer or its agents or employees; (b) An Event of Force Majeure, defined herein as including acts of God, acts of public enemies, fires, floods or unusually severe weather conditions, strikes, lockouts, disputes with workmen or other hostilities, embargoes, wars, riots or civil disturbances, epidemics or quarantine restrictions, delays or shortages of transportation, governmental action including the government’s denial or failure to grant an export license or other needed government authorization; (c) Causes beyond Supplier’s reasonable control, including severe accidents at Supplier’s plant, unforeseen production or engineering delays or inability of Supplier or its vendors to secure adequate materials, manufacturing facilities or labor, or any other acts and causes not within the control of Supplier, which by the exercise of due diligence and reasonable effort, Supplier would not have been able to foresee, avoid or overcome.

6.2. Supplier shall notify Customer of any delayed or non-performance due to an excusable delay or Event of Force Majeure as soon as practicable. If either such event should occur, Supplier’s period of performance shall be extended for a period of time equal to the duration of either such event. If the excusable delay or Event of Force Majeure extends more than six months, Supplier and Customer may mutually agree to terminate the Purchase Order or any portion thereof impacted by the excusable delay or Event of Force Majeure, and Customer shall promptly pay Supplier for any delivered Products or services performed, any works in process, any termination costs, including vendor settlement expenses, and a reasonable profit on the terminated Purchase Order or portion thereof that Supplier and Customer agreed to terminate.

7. NEW MATERIAL WARRANTY

7.1. This section does not apply to any used materials or combinations of new and used materials. Subject to the terms and conditions set forth in Article 11, Limitation of Liability, Supplier warrants that (only NEW) Products manufactured by the supplier, it’s Suppliers (third party manufacturers) or it’s partners, shall be free from defects, including latent defects, in material and workmanship under normal use and service when operated in accordance with Supplier’s operating instruction for one year from shipment for new Products, and 90 days from shipment for non-warranty repairs. Supplier’s obligation and Customer’s sole remedy under the Warranty shall be limited to, at Supplier’s option, the repair or replacement of the nonconforming warranted Product, or any part thereof, FOB origin. Notwithstanding the foregoing, the Warranty shall not apply to an Event of Force Majeure, wear and tear, Used Products as further described in Section 7.2, or to defects arising from or connected with Customer’s or any third party’s (i) improper receipt, transport, handling, storage, maintenance, testing, installation, operation or of the Product, or (ii) alteration, modification, maintenance, overhaul, repair, neglect or foreign object damage of the Product. Supplier shall have no obligation to Customer for any failure, to the extent that it is aggravated by such continued use. THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE AND OF ALL OTHER OBLIGATIONS OR LIABILITIES ON SELLER'S PART. SELLER NEITHER ASSUMES, NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR SELLER, ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF THIS PRODUCT. THIS WARRANTY SHALL NOT APPLY TO THIS PRODUCT OR ANY PART THEREOF WHICH HAS BEEN SUBJECT TO ACCIDENT, NEGLIGENCE, ALTERATION, ABUSE, OR MISUSE. SELLER MAKES NO WARRANTY WHATSOEVER IN RESPECT TO ACCESSORIES OR PARTS NOT SUPPLIED BY SELLER. THE TERM 'ORIGINAL PURCHASER," AS USED IN THIS WARRANTY, SHALL BE DEEMED TO MEAN THAT PERSON FOR WHOM THE PRODUCT IS ORIGINALLY INSTALLED. THIS WARRANTY SHALL APPLY ONLY WITHIN THE BOUNDARIES OF THE CONTINENTAL UNITED STATES. There is no warranty on used materials.

7.2. NOTWITHSTANDING THE FOREGOING AND UNLESS OTHERWISE NOTED IN WRITING, USED PRODUCTS COVERED BY THIS CONTRACT HAVE BEEN PURCHASED BY THE CUSTOMER "AS IS" AND "WITH ALL FAULTS," AND THE CUSTOMER ACKNOWLEDGES THAT SELLER DOES NOT PROVIDE ANY WARRANTY FOR THE GOODS, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES THAT THE GOODS ARE OF MERCHANTABLE QUALITY OR THAT THE GOODS CAN BE USED FOR ANY PARTICULAR PURPOSE. ALL USED EQUIPMENT IS AVAILABLE FOR INSPECTION PRIOR TO SALE IN THE LOCATION WHERE IT IS STORED OR PICTURES CAN BE MADE AVAILABLE IF REQUESTED. SUPPLIER IS NOT RESPONSIBLE FOR THE DESIGN OF USED EQUIPMENT UNLESS PE PRINTS ARE ORDERED.

7.3. Additional material factory warranties may be included on New Products only.

8. PROPRIETARY INFORMATION

For the term of Customer’s Purchase Order, Supplier and Customer, to the extent of their right to do so, may exchange proprietary and/or confidential information not generally known to the public (“Proprietary Information”), only to the extent and as reasonably required to perform its obligation hereunder. Any document marked “Confidential” or “Proprietary” and all copies made of any such document shall be returned by the receiving party (“Recipient”) of Proprietary Information to the disclosing party (“Owner”) upon completion of the purpose for which they were provided, or destroyed by Recipient at Owner’s direction. Neither Supplier nor Customer shall be liable for any disclosure if the data: (a) is generally available to the public (or becomes so) without breach of by Recipient; (b) was available to Recipient on a non-confidential basis from a source that had the right to disclose such information; (c) was rightfully in the possession of Recipient prior to receipt from Owner; or (d) was independently developed without use of Owner’s Confidential Information. No license to a party, under any trademark, patent, copyright, mask protection right or any other intellectual property right, is either granted or implied by the conveying of Proprietary Information to such party. No use of any Supplier trademark, service mark, trade name, design, logo or other trade dress may be made without the prior written consent of Supplier. Any Supplier mark or logo existing on the Product must not be altered or modified in any manner, combined with other elements, or rearranged without the prior written consent of Supplier. None of the Proprietary Information which may be disclosed or exchanged by Owner shall constitute any representation, warranty, assurance, guarantee or inducement to Recipient of any kind and, in particular, regarding the non-infringement of trademarks, patents, copyrights or any intellectual property rights, or other rights of third persons other than the rights expressly granted herein. Customer agrees that it will not attempt, nor will it direct or employ others to attempt, to reverse engineer the Product, subassemblies and/or software that is developed, manufactured or sold by Supplier. The ownership in all Proprietary Information disclosed Owner to the other pursuant to the Purchase Order shall remain with Owner unless otherwise stated in the Purchase Order. The confidentiality obligations herein shall survive for a period of five years after expiration of the Purchase Order.

9. STAMPED PRINTS

“P.E. Prints” or Seals and Calculations are available. Please contact Supplier. Supplier will accept a signed Purchase Order referencing the above quotation number or signing this quotation as an order.

10. ACCEPTANCE AND STORAGE OF MATERIALS

Customer must accept and unload materials upon delivery. If there is an issue with Products, they can be denied and returned through Supplier’s return process, but Products may not be left or sent back on the delivery truck. Customer will be responsible to report damaged material and note it on delivery paperwork supplier by the driver of delivering truck. Adequate space must be allocated for the storage of materials on site and must be made available in a dry, secure location which is in close proximity (150’ max) of the installation area. Damage to material by persons other than Supplier, its agents, or its employees is the responsibility of Customer. Any delays due to product or other material being in the way may be charged at an hourly overage rate.

11. INSTALLATION

Unless otherwise noted, installation charges is not included in the Purchase Order. All installation is Non-Union, Non-Prevailing Wage unless specifically stated in this proposal. If installation is quoted, Supplier assumes that all areas are free and clear of any materials or structures that are not mentioned above. Installation area must be accessible starting at 7AM and for a continuous 9 – 10 hours. Any setbacks that are the result of modifications or changes made by Customer will be billed out at $50/per hour per man. Basic accommodations are the responsibility of Customer which include but are not limited to lighting, running water, heat, adequate power, free and clear area before arrival of crew, staging near installation area and bathrooms. Upon completion of installation Customer must have an authorized person available for a walk through unless they choose to waive this provision in which case they accept that the installation has been completed correctly.

12. LIFT EQUIPMENT

Unless otherwise noted, lifting equipment including but not limited to forklifts and/or scissor lifts is not included in the Purchase Order. All lifting equipment is the responsibility of the customer and must be provided at the time of installation or costs to rent/supply equipment will be added to the final invoice. Working heights above 6’-0” require the use of a scissor lift to comply with OSHA safety regulations. If Customer chooses to provide its own lifting equipment, Customer assumes all risk and waives any claims of personal injury, death or damage to this equipment or to any other personal property associated with its use. Supplier is not responsible for any damage that may be caused by or to this equipment for any reason.

13. GENERAL CUSTOMER RESPONSIBILITIES

Unless otherwise noted, customers are responsible for freight, installation, permits, field dimensions and compliance with local building codes and unloading of materials. All payment terms must be met to release material shipment. If terms are not met, Customer is responsible for all additional costs, as determined in the sole discretion of Supplier, to store materials.

14. MATERIAL COLORS

Unless noted above, materials will be colored with standard factory colors. These colors may not be the same as previous orders and may be different shades of existing materials. The colors supplied are based on the availability of materials at the time of shipping and decided by the manufacturer.

15. FLOOR CAPACITY

Unless otherwise noted, customers are responsible to determine if their existing slab and soil compaction are capable of supporting all quoted structures. A local PE (Slab Engineer) may be needed to determine floor capacities. Supplier and its suppliers/subcontractors are not responsible for costs needed to modify systems after they are manufactured if they do not meet local codes for any reason. Customer is responsible for floor preparation, including the adequacy and suitability of Customer’s floor design and capacity. Supplier can provide base plate size, thickness and design loads for the purpose of evaluating floor slab capacity. Any increase in cost resulting from the modification of base plate size or thickness required by the concrete slab is not covered by this quotation.

16. ANCHORING SYSTEMS

Unless otherwise noted, special anchoring systems are not included. If special anchoring or special inspections are required, please contact Supplier to determine the anchoring system that will be used for all quoted systems. Generally, mezzanine columns will be anchored with 5/8” x 6” concrete wedge anchors or similar. Rack posts will be anchored with ½” x 4” concrete wedge anchors or similar. If special anchors are required by building departments or Customer, it must be requested in writing and quoted as a line item or rider quote to this proposal. If such rider to this proposal does not exist, any costs to repair or upgrade the anchoring system are the sole responsibility of Customer.

17. PERMITTING

Supplier is not responsible for permitting or the acquisition of any permits. Supplier will support the permitting process with Customer or Customer’s architect/representative. Please contact your project manager for PE prints and costs associated with any special inspections.

18. ESTIMATED LEAD TIMES

Estimated lead times are provided for general information purposes only and are not guaranteed in anyway. Projects may take longer depending on holidays or production loads at the time the project is released to production and scheduled, or may be delayed based on material deliveries or a variety of other unforeseen circumstances.

19. RETANIAGE

Retainage is a portion of the agreed upon contract price deliberately withheld until the work is substantially complete to assure that Supplier will satisfy its obligations and complete a construction project. The maximum RETAINAGE is three percent (3%) or $2,500.00, whichever is less.

20. OVERSHIPPED MATERIALS REMAIN THE PROPERTY OF SUPPLIER

From time to time Supplier may ship excess parts and/or supplies required in the installation of Products. Any unused parts, supplies, or other items remain the property of Supplier.

21. CANCELLED ORDERS

21.1 If Customer cancels any order prior to shipment, under no circumstance will Customer be entitled to a return of the Deposit. The Deposit is nonrefundable.

21.2 Should any order placed be cancelled or not proceed for any reason, Supplier reserves the right to charge Customer for any costs where applicable up to the point of cancellation. If for any reason the Products, once ordered by an official purchase order does not proceed to Customer’s site, then Supplier reserves the right to charge for any work carried out to the date of the cancellation.

21.3 Supplier reserves the right to charge Customer a restocking fee for any cancelled items.

21.4 Customer may not partially cancel an order. Any unused material due to customer changes cannot be returned.

22. SITE OR EQUIPMENT DAMAGE

22.1 Supplier is not responsible for damage to doors, walls or building as a result of bringing materials to the installation area. Customer should make arrangements to protect doorways or other items prior to installation. All claims for damage are to be handled by Customer’s insurance policy.

22.2 Supplier is not responsible for damage to customers equipment if they supply their own forklifts, pallet jacks, lifting equipment or access equipment. All claims for damage are to be handled by Customer’s insurance policy.

23. GOVERNING LAW

These Terms and Conditions and any action related hereto shall be governed, controlled, interpreted and defined by and under the laws of the State of Connecticut, USA, without regard to the conflict of laws provisions thereof. The Parties specifically disclaim application of the U.N. Convention on Contracts for the International Sale of Goods (1980) or any subsequent revision(s) thereto.

24. DISPUTES

In the event of any dispute arising out of or in connection with these Terms and Conditions, including, without limitation, fraud, misrepresentation, negligence, or any other alleged tort, shall be decided by arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association currently in effect and in accordance with Title 9 of the United States Code, unless the Parties expressly agree otherwise in writing. The place of arbitration shall be Norwalk, CT, USA. The language of the arbitration shall be English. The arbitral award shall be final and binding upon the Parties.

25. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AND REGARDLESS OF THE NUMBER OF CLAIMS OR THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT, EQUITY, STATUTE, TORT, NEGLIGENCE (ACTIVE OR PASSIVE) OR OTHERWISE, SUPPLIER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQEUENTIAL DAMAGES OF ANY KIND, AND SHALL NOT BE LIABLE TO CUSTOMER FOR LOSSES OF USE, DATA, PROFIT, REVENUE, INCOME, BUSINESS, ANTICIPATED SAVINGS, REPUTATION, AND MORE GENERALLY, ANY LOSSES OF AN ECONOMIC OR FINANCIAL NATURE, REGARDLESS OF WHETHER SUCH LOSSES MAY BE DEEMED AS CONSEQUENTIAL OR ARISING DIRECTLY AND NATURALLY FROM THE INCIDENT GIVING RISE TO THE CLAIM, AND REGARDLESS OF WHETHER SUCH LOSSES ARE FORESEEABLE OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES. EXCLUDING GROSS NEGLIGENCE OR WILLFULL MISCONDUCT, SUPPLIER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH A PURCHASE ORDER SHALL IN NO EVENT EXCEED ACTUAL, DIRECT, AND PROVEN DAMAGES OF THE PRICE OF THE PRODUCT DIRECTLY PURCHASED BY CUSTOMER UNDER THE PURCHASE ORDER GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY. TO THE EXTENT THESE TERMS AND CONDITIONS CONTAIN ANY SPECIFIC REMEDIES PROVIDED BY SUPPLIER TO CUSTOMER, REGARDLESS OF FORM, SUCH REMEDIES SHALL BE PROVIDED BY SUPPLIER ON A SOLE AND EXCLUSIVE BASIS AND IN LIEU OF ANY OTHER REMEDIES, DAMAGES, OR LOSSES.

26. INSURANCE

Supplier and Customer shall each carry insurance coverage in types and amounts adequate to protect against any losses, damages, liabilities or expenses that may reasonable be expected to be incurred under a Purchase Order, and both shall keep such insurance coverage in effect until the conclusion of the Purchase Order. Any request by Customer for the upgrade or change to Supplier’s insurance coverage are the sole cost of Customer plus any associated fees.

27. MODIFICATION

Any modification of these Terms and Conditions shall be valid only if it is in writing and signed by the authorized representatives of both Supplier and Customer.

28. ASSIGNMENT

Neither Party may assign or delegate a Purchase Order or any of its rights, duties or obligations regarding a Purchase Order to any other party without the prior written consent of the other party. Any attempt by either party to assign or delegate any of its rights, duties or obligations regarding a Purchase Order without such consent shall be void and of no effect. Notwithstanding the foregoing, Supplier shall be permitted to subcontract its rights, duties or obligations regarding a Purchase Order to another division, affiliate or wholly-owned subsidiary of Supplier and shall have the right to assign a Purchase Order to any successor by way of merger or consolidation or the acquisition of substantially all of the entire assets of Supplier relating to the subject matter of the Purchase Order; provided, however, that such successor shall assume all of the obligations of Supplier under the Purchase Order. Nothing in this provision is intended to preclude Supplier from awarding routine subcontracts or purchase orders to vendors or other suppliers.

29. AUDIT

Notwithstanding anything set forth herein to the contrary, Customer shall not be allowed or have the, right to audit or examine Supplier’s books and records.

30. NO THIRD PARTY BENEFICIARIES

Except as expressly provided herein, these Terms and Conditions are for the sole and exclusive benefit of the Parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.

31. WAIVER

If either party, at its option, agrees to waive any of these Terms and Conditions, then such waiver shall not for any purpose be construed as a waiver of any succeeding breach of the same or of any other of these Terms and Conditions; nor shall such a waiver be deemed as a course of conduct.

32. SEVERABILITY

If any of these Terms and Conditions are at any time held to be invalid or unenforceable, then such term or condition shall be construed as severable and shall not in any way render invalid or unenforceable the remainder of these Terms and Conditions, which shall remain in full force and effect.

33. PUBLIC DISCLOSURE

Except as required to obtain necessary licenses or governmental approvals, neither party shall issue any news releases, artic les, brochures, advertisements, or other information releases relating to the subject matter of a Purchase Order, except as otherwise required by law, without the prior written approval of the other party.

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