Metal Forms Corporation
Terms and Conditions of Sale
- Controlling Provisions. This document, together with Company's sales quotation referencing this document (the "Quote" and collectively with this document, this "Contract") constitutes an offer by Metal Forms Corporation ("Company") to provide the goods (including both Custom Products and standard products) and services described in the Quote (collectively, the "Products") to the party to whom the Quote is addressed ("Buyer"). The term "Custom Product" means any Product that is manufactured by Company either (a) using prints, designs, drawings and/or specifications furnished (i) by or on behalf of Buyer, (ii) by the Department of Transportation, or (iii) by Company for the benefit of Buyer, or (b) for a specific project. 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 (including any terms contained in Buyer's orders), unless Company expressly assents to such terms in writing. Such proposal of additional, different or varying terms by Buyer will not operate as a rejection of Company's offer, and Company's offer will 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 is the complete statement of those terms. Any terms, conditions, negotiations or understandings not contained in this Contract will have no force or effect unless made in writing and signed by Company and Buyer.
- Acceptance. Buyer will 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 or, if applicable, the final engineering drawings signed by Buyer; (b) Buyer's payment of any deposit or other amounts due under this Contract; (c) Company's delivery of the Products; or (d) any other event constituting acceptance under applicable law.
- Orders. Buyer's order of any Products 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 accept or reject any orders for any reason in its sole discretion. Company may accept any order by confirming the order (whether by written confirmation, invoice or otherwise) or by delivering the Products covered thereby, whichever occurs first. No order is binding on Company unless accepted by Company as provided in this Section 3.
- 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 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 shall inspect the Products upon receipt at the destination and notify Company in writing of any shortages, damages to or defective products within seventy-two (72) hours of delivery. Failure of Buyer to timely notify Company of any shortages, damage to or defective products shall constitute a waiver of any liability of Company. Buyer may not return any Products to Company unless Company agrees in writing. Company reserves the right to correct clerical or similar errors relating this Contract or any order hereunder.
- Delivery. Unless otherwise stated in this Contract, Company shall deliver the Products EXW (Incoterms 2020) Company's facility located in Milwaukee, Wisconsin (the "Delivery Point"). All risk of loss, damage or delay, and title to the Products shall pass from Company to Buyer upon delivery to the carrier at the Delivery Point, regardless of which party arranges for shipment. 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. Buyer shall be responsible for picking up the Products at the Delivery Point and for transporting such Products to Buyer's intended destination. If Buyer requests Company to arrange for shipment, then Company shall add an amount equal to 5% of the aggregate price for the Products to be shipped as a fee for making those arrangements. In all events Buyer shall remain liable to pay all costs of shipment. In no event will Company be identified as the shipper or accept any bill of lading whereby it is identified as the shipper. In partial consideration for Company's sale of Products to Buyer, Buyer hereby grants to Company a security interest in Buyer's right, title and interest in and to the Product, and all accounts, documents, general intangibles, contract rights, chattel paper, instruments, letter of credit rights and investment property arising from the sale, lease, rental or other disposition of the Products, and all additions and accessions thereto, all spare and repair parts, special tools, equipment and replacements therefor, software used therein, and all proceeds, supporting obligations and products of the foregoing (collectively, the "Collateral"), to secure the prompt payment and performance of Buyer’s payment obligations to Company under this Contract. Buyer hereby authorizes Company to file such financing statements or continuation statements and amendments thereto, as may be necessary to perfect or continue the perfection of the security interest described in this Section. If any amount to be paid by Buyer to Company hereunder is not paid on a timely basis, Company may exercise in respect of the Collateral, in addition to all other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party on default under the Uniform Commercial Code, if applicable, as in effect in any relevant jurisdiction.
- Delivery Delays. In the event of delay in delivery requested by Buyer or caused by Buyer's (a) failure to supply adequate instructions; (b) failure to arrange for pickup; (c) failure to supply or approve necessary data in a timely manner; (d) requested and approved changes (including if Company agrees that Buyer may pick up Products at Company's facility); or (e) failure to provide documents required for Company to effect delivery, Company will store all Products at Buyer's risk and expense. Buyer shall pay all storage costs and expenses upon Company's demand. If Buyer does not take delivery by the end of the fifth day, the product will be restocked, and Buyer will be charged a 25% restocking charge (calculated based on the sales price of the Products being restocked) in addition to any other damages that may apply. However, if the item not picked up is a Custom Product, Buyer will be billed for the full quoted price and Company will have no obligation to retain or store the Product and may dispose of it in any suitable fashion.
- Prices; Taxes. Prices for the Products shall be as stated in the Quote. All prices are stated, and shall be payable, in U.S. dollars. All quotations from Company for the Products will automatically expire 48 hours from the date thereof unless the quotation states otherwise or is withdrawn by Company. Buyer shall pay or reimburse Company, on demand, for all taxes, fees and costs, including interest, imposed on, in connection with or measured by any transaction between Company and Buyer, in addition to the prices quoted or invoiced.
- Terms of Payment. Buyer shall make all payments relating to this Contract in a method acceptable to Company. Terms of payment are as follows: net 30 days from the invoice date unless the Quote states otherwise. Buyer agrees to pay a service charge at the rate of 1.5% per month (or at the highest rate allowable under applicable law, whichever is lower) on all overdue amounts (calculated from the due date to the date paid). Company may refuse to ship any Products to Buyer when Buyer has any invoices that are past due.
- Limited Warranty; Damages Limitations. (a) With respect to Custom Products, Company warrants to Buyer that the Products sold to Buyer will be manufactured in accordance with, and will conform to, the final engineering drawings for such Custom Products as provided by Company. With respect to all Products that are not Custom Products, Company warrants to Buyer that the Products sold to Buyer will be free from material defects in material and workmanship. In either case, the warranty period for the applicable warranty shall be ninety days from the date such Products are delivered to the Delivery Point (the "Warranty Period"). 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, modifications 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 or other applicable instructions, improper installation, storage or maintenance, failure to properly secure or fasten Products, or failure to properly set forms relating to Products. 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 to firstname.lastname@example.org during the Warranty Period of any breach, to either, at Company's option: (i) repair or replace without charge any defective Product, in which case Buyer shall return to Company the defective Product or component at Buyer's sole expense; or (ii) credit to Buyer or refund the purchase price for such defective Product. This limited warranty covers only the replacement or repair of defective Products and does not include the cost of transportation of the Products to Company's facility. COMPANY MAKES NO WARRANTIES ON PRODUCTS THAT ARE NOT MANUFACTURED BY COMPANY. To the extent permissible, Company will assign to Buyer any warranty that the manufacturer may offer for such third-party Products or parts, but Company does not guarantee that the manufacturer will comply with any of the terms of its warranty. Prior to using or permitting use of the Products, Buyer shall determine the suitability of the Products for the intended use and cause the Products to be installed correctly, if not installed by Company. Buyer assumes all risk and liability whatsoever in connection therewith. Buyer agrees that Company has no post-sale duty to warn Buyer or any other party about any matter. (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. 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. COMPANY'S AGGREGATE LIABILITY WITH RESPECT TO THIS CONTRACT SHALL BE LIMITED TO THE AMOUNT OF MONEY PAID TO COMPANY BY BUYER FOR THE PRODUCTS. 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. No Company employee or representative is authorized to change this limited warranty in any way or grant any other warranty unless such change is made in writing and signed by an officer of Company. Without limiting the foregoing, Buyer acknowledges that for any Products which are Custom Products, Company has no obligation to test prints, designs and/or specifications or confirm that any prints, designs and/or specifications including without limitation the final engineering drawings (or the Custom Products resulting therefrom) are suitable or fit for any project, purpose, function, application or use, all of which inspection, testing and confirmation activities shall be solely the responsibility of Buyer.
- Intellectual Property. Nothing in this Contract will be construed to give Buyer any rights in any trademarks or other intellectual property of Company.
- Force Majeure. Company will not be responsible for any default or damage 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 Company'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.
- 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, reasonable attorneys' fees, incurred by or against Company which arise out of or result from any of the following: (a) any claim that any prints, designs or specifications furnished by Buyer infringe or constitute a misappropriation of any third party intellectual property rights; (b) any claim for bodily injury, including death or disease, or for loss or damage to property which results from or is caused by the use of any product which is manufactured or sold by Buyer and which incorporates or otherwise utilizes any Product sold hereunder (including, without limitation, any Custom Product); and (c) any claim for bodily injury, including death or disease, or for loss or damage to property which results from or is caused by the use of any Product (including, without limitation, any Custom Product).
- Insurance. Buyer acknowledges and agrees that Company shall have no obligation to provide Buyer with any certificate of insurance.
- Termination. In addition to other available remedies, Company may terminate this Contract with immediate effect upon written notice to Buyer if Buyer (a) fails to pay any amount when due, (b) has not otherwise performed or complied with this Contract in whole or in part, or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- Miscellaneous. This Contract constitutes the entire agreement between the parties with respect to Buyer's purchase of the Products 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. This Contract will be governed by and construed according to the laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Wisconsin. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the circuit courts of the State of Wisconsin, in each case located in the City of Milwaukee, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding Neither this Contract nor sales hereunder will be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. 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) will not affect any other provision of this Contract, (b) the remaining terms, covenants and conditions hereof will 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 will 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. This Contract is for the sole 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 under or by reason of this Contract.
- Electronic Communications - when you use our web site or send us email, you are communicating with us electronically. You agree to receive communication from us electronically. You agree that what we provide to you electronically satisfies any legal requirement stating that such communications must be made in writing.
- License - Metal Forms Corporation grants you a limited license to view and use this web site and not to download or modify it in part or whole. You are explicitly not granted permission to use data gathering tools, link directly to individual site elements, or otherwise exploit this web site in part or whole for commercial purposes. You are given permission to link to the home page of this web site only, but you may not use the Metal Forms Corporation logo in that link without permission.
- Your Account - It is your responsibility to keep your account login and password confidential. Metal Forms Corporation does not sell any products to children but rather to adults who can make purchases with a credit card. If you are under 18 years old, you may use this web site under the supervision of a parent or guardian. Metal Forms Corporation reserves the right to refuse service, delete accounts, remove and/or edit content, and cancel orders at their discretion.
- Risk of Loss - Once we pass your order on to the carrier of your choice, you assume the risk of loss of that order.
- Product Descriptions - Our product descriptions are as accurate as possible, but we do not guarantee that they are correct. If a product you receive is not as it was described on the site, then your only option is to return it in unused condition.
- Other Companies - Metal Forms Corporation does not assume any responsibility or liability for any third party services offered through our web site.
Metalforms.com and any information found on the site are offered for informational purposes only. Metal Forms Corporation is not liable or responsible for the availability, usefulness, or accuracy of the content made available or transmitted to this site. The information has not been verified by an outside source or authenticated either wholly or partially by metalforms.com. Metal Forms Corporation is not responsible or liable for any misfortune, hardships, or injury resulting from the use of this site.
Metal Forms Corporation is not liable for:
- Products damaged by the shipping company
- Packages delivered but not received by the customer
Please contact your shipping company for lost and damaged claims.
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What Information Do We Collect?
Metal Forms Corporation only collects information provided by you, the website user, when you place an order for our products or services, register on our site or create a member account, subscribe to our newsletters, or fill out contact forms. Information collected through these methods include: name, email address, mailing address, phone number, or credit card information and billing address.
Any information collected from you while using our website may be used to: personalize your experience on our site, improve our website, improve customer service, or to process transactions. The information collected, whether private or public, will not be given, sold, exchanged, or transferred for any reason to another company or person without your consent, other than for the purpose of delivering the products or services purchased. The email you provide during purchase will only be used to update you on information regarding your order.
Website Security Methods and Fraud Prevention
Any credit card information, or other sensitive information, collected by metalforms.com is first transmitted to Secure Socket Layer (SSL) technology and then encrypted into our database, only accessible by authorized persons with right to access our systems. All authorized persons are required to keep information accessed via our database confidential. At our discretion, orders received over the phone or internet may require photo I.D. verification.