1. Terms
This purchase order is an offer by Giampaolo Group Inc. (“Principal Purchaser”), and/or an affiliates of Principal Purchaser, including but not limited to Triple M Metal LP, Triple M (U.S.), Inc., Niagara Metals LLC, Matalco Canada Inc., Matalco USA LLC, Venture Steel Inc., Venture Steel (U.S.) Inc., Giampaolo Developments, GIL USA LLC (collectively with Principal Purchaser (a “Giampaolo Company”) and/or any division or subsidiary of a Giampaolo Company identified on the face of the purchase order (“Buyer”) for the purchase of the goods and services specified on the face of this purchase order from the party to whom the purchase order is addressed (“Seller”) subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the purchase order, the “Purchase Order”).
This Purchase Order, together with any documents explicitly incorporated by reference other than Seller’s additional terms and conditions which purport to supersede these Terms, is the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings, agreements and communications, both written and oral, with respect thereto. The Purchase Order expressly limits Seller’s acceptance to the terms of the Purchase Order.
These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Purchase Order including any proposal, invoice, acknowledgement or otherwise.
Acceptance is limited to the terms and conditions of this Purchase Order, and no purported revisions of, additions to, or deletions from this Purchase Order shall be effective, whether in Seller’s proposal, invoice, acknowledgment or otherwise, and no local, general or trade custom or usage, shall be deemed to effect any variation herein unless expressly agreed to in writing by Buyer’s authorized representative.
The first occurring expression of acceptance of this Purchase Order by Seller, including Seller’s (i) written acceptance, (ii) commencement of work on the Goods subject to this Purchase Order (the “Goods”), (iii) shipment of the Goods, (iv) commencement of performance of all or any portion of the services subject to this Order (the “Services”), (v) failure to object to this Purchase Order, in writing, within five (5) days of receipt of this Purchase Order, and (vi) conduct that indicates Seller’s acceptance, including preparation for Seller’s performance, shall constitute an acceptance of Buyer’s offer.
A signed acceptance of this Purchase Order is not required and Seller specifically waives any such requirement and any defense to the validity and enforceability of this Order arising from the electronic transmission of this Purchase Order to Seller and Seller’s acceptance in accordance with this Section 1.
If Seller objects to this Purchase Order, Seller’s objections are deemed waived if Seller subsequently commences work on the Goods, or upon shipment of the Goods or performance of the Services without an express written modification made by Buyer.
To the extent that terms appearing on the face of this Purchase Order are inconsistent with those set forth herein, the terms on the face shall govern.
2. Acceptance
This Order is not binding on Buyer until Seller accepts the Purchase Order in writing, including by issuance of an order acknowledgement. Buyer may withdraw the Purchase Order at any time before it is accepted by Seller.
Once a Purchase Order is accepted, no change to this Purchase Order is binding upon Buyer unless it is in writing, specifically states that it amends this Purchase Order and is signed by an authorized representative of Buyer.
This Purchase Order does not constitute an acceptance of any prior offer or proposal by Seller. If found to be an acceptance of any prior offer or proposal by Seller, such acceptance shall be limited to the Terms. Any additional or different terms are hereby objected to and rejected by Buyer.
3. Specifications
All Goods and Services furnished pursuant to this Purchase Order shall strictly conform to the specifications, descriptions and warranties set forth in this Purchase Order. No change in the specifications nor any substitutions shall be made except upon written application to, and subsequent written authority of, Buyer.
4. Time and Place of Delivery; and Buyer’s Inspection
Time is of the essence. Seller shall deliver the Goods in the quantities and on the delivery dates and times specified on the face of this Purchase Order, and shall notify Buyer in writing if unable to do so.
Buyer reserves the right to reject Goods and to cancel all or any portion of this Purchase Order in the event of failure to deliver at the time and place specified.
Goods are received subject to Buyer’s inspection and acceptance, and subject to Buyer’s right to reject and return at Seller’s expense Goods which fail to conform strictly.
Goods delivered in excess quantities or in advance of delivery dates/times are at Seller’s risk and may be returned at Seller’s expense. Buyer is not required to pay for excess quantities.
Seller warrants any production capacity representation as a warranty that stated quantities can be produced without overtime charges or surcharges.
5. Extension of Time Delivery
Buyer shall not be liable for failure to take delivery when due if occasioned by events beyond Buyer’s reasonable control (including acts of God, pandemics/epidemics, government actions, wars, riots, embargo, strikes or other labor trouble, transportation delays, shortages, equipment breakdown).
At Buyer’s option, delivery time may be extended to the extent of the delay. Seller is responsible for damages incurred by Buyer due to Seller’s failure to meet delivery dates, other than an approved delay. Approved delay excludes delays from Seller financial issues, market-driven material availability/cost changes, or Seller/subcontractor labor disruptions.
Seller shall use best efforts (at its expense) to mitigate adverse effects or costs to Buyer due to delays.
6. Risk of Loss
Title and risk of loss transfer to Buyer at time and place of delivery; however, risk of loss prior to actual receipt remains with Seller. Goods are deemed accepted only after Buyer review per Section 4.
7. Shipment
Goods must be shipped by the route, method, and carrier stated in this Purchase Order. If Seller fails to ship on or before scheduled date, Buyer may specify a more rapid method and Seller bears increased costs.
Failure to comply with Buyer routing instructions may result in charge-back of excess freight. Seller must note proper NMFC freight classification to obtain lowest appropriate rate.
Unless explicitly stated otherwise, deliveries are DDP (Delivery Duty Paid). Buyer is not liable for insurance, storage, parking, or detention charges.
If Seller fails to meet delivery dates/times (other than Force Majeure), Buyer may direct expedited shipment and Seller pays excess costs and other damages, including line shutdown and alternate sourcing costs.
8. Packing, Marking, Labeling and Invoicing
A packing list must be included with each shipment, with original bills of lading properly signed. Invoice copy must be forwarded to Buyer’s AP mailbox no later than the day after shipment. Individual invoices per separate shipment.
Buyer shall not be charged for packaging/boxing/crating/cartage. Shipping documents and each package must reference piece number, Buyer PO number, and Seller packing slip number.
Seller must package/label/transport Goods (especially hazardous materials) in compliance with applicable laws for the shipping destination and/or Buyer specifications.
Seller agrees to fulfill customs-related obligations; provides documents for customs drawback; and supplies certificates of origin/value-added, HS Codes, and related origin/cost information as required. Seller indemnifies Buyer for issues arising from delays/errors/non-compliance.
Buyer may request backup documentation (including supplier invoices); Seller must provide it within three (3) business days.
9. Payment; Waiver of Liens
The price is stated in the Order, or if none, the last quoted price. Unless otherwise stated, prices include customs duties/expenses, tariffs, and applicable taxes. Payment may be made by electronic funds transfer at Buyer’s option.
Payment follows receipt and acceptance of Goods and receipt of proper documentation. Unless otherwise stated on the face of the Purchase Order, payment is Net 60.
No price increase or additional amounts are payable without Buyer’s prior written consent. Seller represents Buyer receives terms no less favorable (materially) than other customers, and Buyer may elect to receive such benefits if offered.
As a condition to payment, Seller shall furnish an executed waiver of liens and claims upon request. Seller indemnifies Buyer against liens/encumbrances arising from Seller performance.
10. Seller’s Warranties and Replacement Parts
Seller warrants for one year after acceptance (or longer if stated or required by law) that all Goods/Services: conform to specs; are free from defects; are merchantable and fit for intended purpose; and bear required warnings/labels/markings.
Seller warrants compliance with applicable laws; services performed in good/workmanlike manner; and includes labor/supply chain commitments (no child/underage labor, no forced labor, right to associate, anti-harassment/discrimination, safe workplace, lawful wages/benefits, lawful working hours).
In allocation situations, Seller gives preference to Buyer for Goods/Services ordered. Seller must keep replacement parts for fifteen (15) years after end-of-life and supply/service them during that period.
11. Buyer’s Remedies
Acceptance does not waive Buyer’s remedies. Buyer may cancel remaining order, reject delivered Goods/Services, revoke acceptance, return Goods, and recover purchase price, cover costs, and damages (including removal/recall, transportation/custody, injury/property damage).
If Seller becomes insolvent/assigns for benefit of creditors/or bankruptcy filed, Buyer may cancel immediately. If replacement is required, Seller replaces at its expense; if Seller fails, Buyer may source elsewhere and charge Seller and terminate for cause.
12. Patent, Copyrights, Trademarks
Seller warrants Goods (except those per Buyer specific design) and intended use do not infringe third-party IP. Seller indemnifies/defends Buyer for infringement claims and will procure rights, replace, or modify Goods to be non-infringing at Seller’s expense.
13. Indemnification
Seller indemnifies, defends, and holds harmless Buyer and related parties from Losses arising out of Seller performance or Seller parties on Buyer premises, attributable to breach, negligence/misconduct, legal non-compliance, bodily injury/death, or property damage, even if partly caused by an Indemnified Party (except sole negligence/willful misconduct of Indemnified Party).
Indemnification is not limited by workers’ compensation/benefits laws, and Seller waives certain defenses as specified.
14. Labor, Work and Services; Insurance
Seller performs services as an independent contractor and is responsible for taxes/insurance. Work on Buyer premises must comply with Buyer rules and workplace safety laws.
Prior to on-site services and until completion, Seller must maintain minimum insurance:
- Workers’ Compensation: Statutory
- Employers Liability: $1,000,000 (accident), $1,000,000 (disease policy limit), $1,000,000 (disease each employee)
- Commercial General Liability (incl. contractual liability, products/completed ops, vendor endorsement): $1,000,000 occurrence; $1,000,000 general aggregate; $1,000,000 products/completed ops aggregate
- Business Auto Liability (any auto incl. hired/non-owned): $1,000,000 per accident
If requested, Seller provides certificates, names Buyer as additional insured as specified, provides cancellation notice, and agrees insurance is primary. Failure allows Buyer to cancel.
15. Laws and Regulations
Goods/Services must comply with applicable laws and regulations, including specified U.S. and Canadian laws and requirements, and Seller must maintain required licenses/permits.
Seller will furnish certificates of compliance when required or requested. Each invoice is written assurance of compliance. Seller will participate in audits/inquiries/certifications at Seller’s expense.
Seller agrees to comply with Buyer’s code of conduct, policies, procedures, ethical guidelines, and restrictions.
16. Termination
Buyer may terminate without cause at any time (whole/part) on written notice. Seller is entitled to a reasonable termination fee reflecting work delivered/performed before termination. Buyer is not liable for lost profits, overhead, interest, product development, facilities/equipment rearrangement, depreciation, or special losses.
Buyer may terminate immediately for breach. Seller must preserve/protect/deliver materials on hand/WIP/completed work upon request (at Buyer’s expense) and mitigate damages.
For transitions to alternate suppliers, Seller cooperates and continues supply during the period needed, without premium or added conditions, to avoid interruption.
17. Assignment, Buyer’s Right to Perform and Set-Off
Seller may not assign/delegate without Buyer consent; unauthorized attempts are void. Buyer may set-off/recoup against amounts due Seller for Seller obligations to Buyer, including disputed/contingent/unliquidated obligations.
If Seller fails to perform, Buyer may (but need not) perform obligations and enter Seller premises where applicable. Seller pays all costs/damages/expenses incurred by Buyer, or Buyer may set-off those amounts.
18. Confidentiality
Buyer’s non-public confidential/proprietary information is confidential and used solely for performing the Purchase Order. Seller may not disclose/copy without written authorization and must return materials upon request. Buyer may seek injunctive relief.
Exceptions apply for information in public domain, later becoming public (not Seller fault), known to Seller, or rightfully obtained non-confidentially from a third party.
Unless otherwise stated, Seller’s information provided to Buyer is not deemed confidential and Seller has no rights against Buyer for use/disclosure.
19. No Waiver of Defaults
Buyer’s failure to enforce any term is not a waiver. No waiver is effective unless in writing and signed by Buyer.
20. Survival; Remedies Cumulative
Seller agreements/representations (including confidentiality, indemnification, warranties) survive delivery/final payment or termination. Buyer’s rights/remedies are cumulative and not in limitation of those at law or equity.
21. Severability
Unenforceable provisions are ineffective only to the extent of unenforceability (and enforced to maximum permissible extent) without invalidating remaining provisions.
22. No Third-Party Beneficiaries
This Purchase Order benefits only the parties and their successors/permitted assigns; no other person/entity receives rights/benefits/remedies.
23. Governing Law
23(a) Orders in the United States of America (USA)
- Governed by laws of Delaware and applicable U.S. federal laws; CISG excluded.
- Disputes resolved by arbitration: single arbitrator appointed by Buyer; AAA rules; heard exclusively in Buffalo, New York, USA.
23(b) Orders in Canada or any country other than the USA
- Governed by laws of Ontario and applicable Canadian federal laws; CISG excluded.
- Disputes resolved by arbitration: single arbitrator appointed by Buyer; AAA rules; heard exclusively in Toronto, Ontario, Canada.
24. English Language
The parties confirm the Purchase Order and related documents be drafted in English, without prejudice to documents that may be drawn in French only or bilingual French/English.
Les parties confirment par la présente leur souhait exprès que le présent bon de commande et tous les documents connexes soient rédigés en anglais, mais sans préjudice de ces documents qui peuvent de temps à autre être rédigés en français uniquement ou en français et en anglais.