Terms of Sale (Draft)
These terms apply to every quote, order and sale of material and processing by Winston Materials ("Winston Materials," "we," "us") to a customer ("you"). Terms on a written quote or invoice that differ from these control for that order. Terms on your purchase order do not apply unless we agree to them in writing. This is a draft pending attorney review.
1. Quotes
A quote is valid for the period stated on the quote. If no period is stated, it is valid for [X] days from the quote date. A quote is an offer to sell the listed material and processing at the listed price and terms, and it becomes a contract when you accept it and we confirm the order.
Quotes are based on the specifications, quantities, ship-to location and need-by date you gave us. Changes to any of these may change the price or delivery.
2. Pricing
Metal prices move with the market, sometimes daily. Unless a quote states a firm price, pricing is subject to change until the order is confirmed. If a surcharge or market adjustment applies from the source after confirmation, we will tell you before we ship and you may cancel the affected lines without charge if the material has not yet been cut or processed.
Prices do not include sales tax, which is added where required unless you provide a valid Texas resale or exemption certificate.
3. Payment
Payment terms are set per account. New customers and customers without approved credit pay before shipment by the methods listed on the quote or invoice. Customers with approved credit pay on the terms stated on the invoice. We may change or withdraw credit terms at any time for future orders.
Past-due balances may accrue a late charge of [X]% per month or the maximum rate allowed by law, whichever is lower. You agree to pay reasonable costs of collection, including attorney fees, on past-due amounts, to the extent allowed by law.
4. Freight and delivery
Freight terms, including FOB point and whether freight is prepaid, prepaid and added, or collect, are as stated on the quote. Delivery dates are estimates based on information available when we quote. Delivery timing depends on the material and where it is going, and we are not liable for delays caused by carriers, sources, weather or other events outside our control.
You are responsible for providing safe access and appropriate unloading at the delivery location unless the quote states otherwise.
5. Title and risk of loss
Title and risk of loss pass to you at the FOB point stated on the quote. If none is stated, they pass when the material is delivered to the carrier for shipment to you [attorney to confirm default]. [Attorney to consider whether to retain a security interest in material until paid in full.]
6. Inspection and claims
Inspect material on delivery. Note any visible damage or shortage on the delivery receipt before signing, and photograph it.
Claims for shortage, damage, wrong material or nonconformance must be made in writing within the period stated on the quote or invoice, or if none is stated, within [X] days of delivery. Material that is cut, welded, machined, formed or otherwise processed by you is accepted, except for defects that could not reasonably have been found by inspection before processing.
Do not return material without our written authorization. If a claim is valid, we will, at our option, replace the material, correct it, or credit the price paid for the affected material.
7. Returns and cancellations
Material cut to size, processed or ordered specially for you is non-returnable and non-cancelable once cutting or processing has begun or the special order has been placed with the source. Standard, unprocessed material may be returned only with our written authorization and may be subject to a restocking charge of [X]% plus freight.
8. Specifications and tolerances
Material is supplied to the standard dimensional, flatness and other tolerances of the applicable ASTM or other industry specification for that product, unless different tolerances are agreed in writing on the quote. Cut-to-size tolerances are as stated on the quote for the cut method.
You are responsible for choosing material suitable for your application. Any suggestion we make about alloy, grade or form is a convenience, not an engineering recommendation, and does not replace the judgment of your engineer or designer.
9. Warranty
We warrant only that material will conform to the specification stated on the quote and, when mill certs are provided, to the properties shown on those certs. That warranty passes through from the producer's certification.
EXCEPT AS STATED IN THIS SECTION, WE MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of liability
Your remedy for any claim relating to material or processing we supply is limited to replacement of the nonconforming material or a credit or refund of the price paid for it, at our option.
WE ARE NOT LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, INCLUDING LOST PROFITS, LABOR, REWORK, DOWNTIME OR THE COST OF OTHER MATERIALS, EVEN IF ADVISED OF THEIR POSSIBILITY. OUR TOTAL LIABILITY ON ANY ORDER WILL NOT EXCEED THE PRICE PAID FOR THE MATERIAL OR PROCESSING GIVING RISE TO THE CLAIM.
11. Governing law and venue
These terms and every sale are governed by the laws of the State of Texas, without regard to conflict-of-law rules. Any dispute will be brought in the state or federal courts located in [Hays County], Texas, and both parties consent to that venue.
12. General
If any part of these terms is found unenforceable, the rest remains in effect. Our failure to enforce a term is not a waiver of it. We may update these terms for future orders; the version in effect on the date of your order applies.
Questions about these terms: Winston Materials, 400 Creek Rd, Dripping Springs, TX 78620, 509-724-3569, nathan@winstonmaterials.com.