Terms of Sale

Per UCC 2-207, all sales by National Metal Fabricators (NMF) are made subject to the following terms and conditions. NMF expressly rejects any different or additional terms or conditions contained in any documents submitted by Buyer. NMF’s provision of credit, acceptance of any purchase order and/or sale of any goods are expressly made conditional on Buyer’s assent to these terms and conditions.

1. Except as otherwise agreed in writing signed by Buyer and NMF, the applicable NMF sales order acknowledgement and/or quote, together with these terms and conditions constitute the entire agreement between NMF and Buyer relating to the sale of such goods by NMF. Terms or conditions contained in any document issued by Buyer that in any manner purport to alter, modify, change, suspend, or add to any term or condition contained herein shall be deemed excluded from such Buyer document and waived by Buyer. NMF and Buyer expressly agree that NMF may modify these terms and conditions from time to time, and such modifications shall be binding upon the Buyer.

2. All deliveries are F.O.B. NMF’s facility, freight prepaid or freight collect to destination. If shipped freight prepaid, the charge for freight will be added to the invoice. Neither freight charges nor tax is subject to any discount. Risk of loss or damage in transit shall be borne by Buyer, and claims shall be made directly with carrier. Buyer may pick up the goods at NMF’s facility provided Buyer does so within 10 days after the date Buyer is notified of the availability of goods. NMF reserves the right to ship without further notification at any time after expiration of the 10-day period.

3. Delivery dates are approximate. NMF shall not be responsible for non-shipment of goods or delays in delivery or performance due to causes beyond its reasonable control, including, but not limited to, acts of God; acts of Buyer; strikes or other labor disturbances; NMF’s inability to obtain, or material increases in the cost of fuel, raw materials or parts; delays in transportation; repairs to equipment; fires; or accidents.; Acceptance of goods upon delivery shall constitute a waiver by Buyer of any claim for damages on account of non-shipment or delays in delivery or performance.

4. Subject to standard manufacturing variations, NMF warrants that the goods furnished hereunder shall meet specifications set forth on the face of the applicable NMF sales order acknowledgement and/or quote. NMF makes no other warranties, express or implied, and specifically excludes all warranties of merchantability and fitness for a particular purpose.

5. No claim for damages for goods that do not conform to specifications will be allowed unless NMF is given immediate notice after delivery of goods to the first destination to which they are shipped and allowed an opportunity to inspect them. Goods for which damages are claimed shall not be returned, repaired, or discarded without NMF’s written consent. Buyer’s exclusive remedy against NMF, and NMF’s sole obligation for any and all claims, whether for breach of contract, warranty, tort (including negligence), or otherwise, shall be limited to NMF’s replacing goods that do not conform to specifications or, at NMF’s option, refunding the purchase price. In no event shall NMF have any liability for damages in an amount exceeding the purchase price of the goods sold hereunder, nor shall NMF have any liability for incidental or consequential damages.

6. If, in NMF’s opinion, Buyer’s credit becomes impaired, NMF may suspend performance until such time as NMF has received full payment for any goods already delivered or in process and is satisfied (in its sole discretion) as to Buyer’s credit for future deliveries. If NMF suspends performance and later proceeds with such order, NMF shall be entitled to such extension of time for performance as is necessitated by the suspension.

7. All taxes of any kind levied by any federal, state, municipal or other governmental authority, which tax NMF is required to collect or pay with respect to the production, sale, or shipment of goods sold to Buyer shall be the responsibility of Buyer. Buyer agrees to pay all such taxes and further agrees to reimburse NMF for any such payments made by NMF.

8. Checks or payments, whether full or partial, received from or for the account of Buyer, regardless of writings, legends, or notations upon such checks or payments, or regardless of other writings, statements, or documents, shall be applied by NMF against any amount owing by Buyer with full reservation of all NMF’s right, without an accord and satisfaction of Buyer’s liability.

9. In the event Buyer fails to make payment to NMF of any amounts due and owing to NMF (including any applicable surcharge or freight charge), NMF shall have the right to terminate any Buyer order or any unfulfilled portion thereof, and NMF may terminate any other agreement between NMF and Buyer. NMF shall have the right to employ an attorney to collect the balance due, and Buyer agrees to pay all collection costs incurred by NMF, including its reasonable attorney’s fees.

10. This agreement shall be governed by the laws of the state of Illinois. Buyer, acting for itself and its successors and assigns, hereby expressly and irrevocably consents to the exclusive jurisdiction of the state and federal courts of that state for any litigation which may arise out of or be related to this agreement. Buyer waives any objection based on forum non conveniens or any objection to venue of any such action.

11. NMF reserves the right to enforce these terms and conditions at any time and none shall be deemed waived unless such waiver is in writing signed by a duly authorized officer of NMF. All rights and remedies granted herein are in addition to all remedies available at law or in equity.