These Customer Terms and Conditions shall apply to all sales and deliveries of products by Continental Materials, Inc. (“CMI”) to any of its customers (each, a “Customer”) pursuant to any purchase order accepted by CMI (a “Purchase Order”) after 8/1/2022, except to the extent expressly stated otherwise in the Purchase Order or other separate written agreement between CMI and the particular Customer. These Customer Terms and Conditions are subject to change at any time, and any such changes shall become effective upon their posting to CMI’s website. For additional information or answers to questions regarding these Customer Terms and Conditions, please contact CMI at 215-884-4930 or email@example.com
1. CMI’s Warranty. CMI warrants that (i) the design, manufacture and packaging (including all warnings and disclaimers) of all Products sold by CMI will comply with all applicable federal, state and local laws, codes, ordinances, rules, regulations and requirements of the country of origin and the United States or any applicable state or jurisdiction in the United States (collectively, “Legal Requirements”) and (ii) all Products sold by CMI, when delivered, will conform to and comply with all applicable Legal Requirements (including but not limited to the Lacey Act; Magnuson – Moss Warranty – Federal Trade Commission Improvement Act; Fair Packaging and Labeling Act; Federal Hazardous Substances Act; all Federal Trade Commission Rules and Regulations), will meet applicable ASTM standards as published from time to time on CMI’s website, will be merchantable and will be free from defects. Upon request, CMI will provide any necessary Product information as required by applicable Law, which may include product instructions, hazardous material information, safety data sheets and technical data sheets.
2. Customer’s Recourse. Customer may reject Products only if they fail to meet the applicable warranties made by CMI expressly set forth above and Customer notifies CMI in writing of any claims of rejected Products (including the original purchase order number and the reason for the rejection) promptly after the discovery of grounds for rejection and provides all cooperation reasonably requested by CMI to verify the basis for any claimed rejection. If Products fail to meet CMI’s warranty set forth above and Customer complies with the preceding sentence, CMI will either: (i) provide Customer with replacement conforming Products as promptly as practicable at no additional cost to Customer or (ii) issue Customer a refund or credit against outstanding invoices for the amount paid by Customer for such Products. Customer shall not be entitled to any refund or credit for rejected Products that are replaced by CMI with conforming Products. CMI’s warranties and Customer’s recourse with respect to any Products expire one year after the date of sale. The remedies provided to Customer in this paragraph are exclusive.
3. Exception for Certain Products. Notwithstanding the foregoing, any Products sold as seconds, as is, economy, rejects or any similar designation are sold AS IS, and Customer will have no recourse once delivery is accepted, regardless of any defect, loss, damages or injury to any person or property whatsoever.
4. Certain Disclaimers. Notwithstanding the foregoing, in no event will CMI be responsible for any damage or loss occurring to Products after delivery or resulting from any act or omission by Customer or the freight carrier, as CMI is not responsible for damages in transit. Any claims based on delivery will be made directly with the freight carrier. Claims for shortages in the count of Products must be noted at time of delivery on the delivery receipts or bill of lading.
5. LIMITATION OF WARRANTIES. EXCEPT AS PROVIDED ABOVE, CMI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF COMPATIBILITY, FITNESS FOR A PARTICULAR PURPOSE, APPLICATION OR USE, OR ANY OTHER WARRANTY THAT OTHERWISE MIGHT HAVE BEEN IMPLIED BY COURSE OF DEALING, COURSE OF CONDUCT, COURSE OF PERFORMANCE, TRADE USAGE, INDUSTRY CUSTOM OR OTHER PRACTICE), OR ANY OTHER OBLIGATION, COMMITMENT OR ASSURANCE WITH RESPECT TO ANY OF THE PRODUCTS OR ANY COMPONENT THEREOF.
6. Customer Responsibility. Customer will be responsible for and will indemnify, defend and hold harmless CMI from and against any non-conformity, defect, loss, liability, cost, expense, damages or claim based on any failure of Customer or any of its customers or end-users to maintain, hold, transport, store or use any Products only in accordance with customary industry practices or manufacturer’s recommendations or guidelines or for any use beyond the Product’s intended use.
7. Timing. Specific shipping dates are only approximate. CMI will use commercially reasonable efforts to meet a Customer’s desired shipping date indicated in a purchase order accepted by CMI. CMI will not be responsible for any delays or non-performance caused by the freight carrier or any conditions or circumstances beyond CMI’s control.
8. Price Adjustments. Any increase in freight rates, including freight surcharges, fuel surcharges, etc., are to be borne by Customer. Any increase in tariffs, duties or other charges or costs imposed due an act of government may be charged to Customer. Any per diem, demurrage or other charges resulting from delay in taking delivery or unloading cargo will be Customer’s responsibility.
9. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT WILL CMI BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOST OPPORTUNITY. THE LIABILITY LIMITATIONS IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF WHETHER CMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE (SOLE OR CONCURRENT, ACTIVE OR PASSIVE), STRICT LIABILITY, ANY OTHER TORT, FAILURE OF ESSENTIAL PURPOSE, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
10. Payment Terms. Payment to CMI is due net 30 days after shipment unless otherwise specified and agreed to by CMI in writing. If any amount due to CMI is not paid timely, Customer will be charged a late fee 1 1/2% per month on the unpaid balance and will pay all collection cost (including but not limited to attorneys’ fees and court costs) incurred by CMI.
11. Independent Contractor. CMI and Customer shall remain strictly independent contractors. Neither party shall be the agent, partner, joint venturer, employee, fiduciary or representative of the other, and neither shall have any right or authority to make any warranty, representation or commitment on behalf or otherwise bind the other party.
12. Successors and Assigns. Neither Customer nor CMI shall transfer, assign, subcontract or delegate any rights or obligations owed to the other party without its written consent; except, however, a party may transfer and assignment its rights and obligations to the successor to or transferee of all or substantially all of such party’s business and assets. These Customer Terms and Conditions shall be binding upon and inure to the benefit of each party’s successors and permitted assigns. No transfer, assignment or delegation of a Purchase Order or rights or obligations under a Purchase Order or these Customer Terms and Conditions shall relieve the assigning party of any liability or obligation.
13. Further Assurances. Each party shall execute such agreements, instruments and documents and take such other actions as the other party may reasonably request in writing from time to time to carry out these Customer Terms and Conditions or provide further assurances of its ability and commitment to performing its obligations under a Purchase Order or these Customer Terms and Conditions or to confirm or verify performance.
14. Governing Law, Venue and Jurisdiction. All Purchase Orders and agreements and transactions between CMI and Customer shall be governed by the laws of the Commonwealth of Pennsylvania (the “State”), without application of conflicts of laws principles. For any dispute, controversy or claim between CMI and Customer (whether or not relating to a Purchase Order or any Products), Customer submits and consents to the jurisdiction and venue of any federal or state court in the State (and appropriate appellate courts) and shall not initiate any action or proceeding or assert any claim against CMI in any other jurisdiction.
15. Amendments; Waivers. The terms of a Purchase Order may be amended or modified only in a writing signed by both CMI and Customer and waived only in a writing signed by the waiving party. Neither the terms of a Purchase Order nor these Customer Terms and Conditions shall be deemed to have been amended, modified or waived by any course of dealing, course of conduct or course of performance. No delay to enforce any terms of at any one or more times, or for any periods of time, any or all provisions these Customer Terms and Conditions or any Purchase Orders shall be construed as a waiver of any such provisions or shall diminish or affect the right of such party thereafter to enforce the same or any other provision, nor shall any single or partial waiver operate as a future or continuing waiver thereafter.
16. Counting Days. If the final date for performance and due date of a payment falls on a day that is not a business day, the final date or due date shall be the immediately following business day (which means a day other than a Saturday or Sunday or day on which banking institutions in the State are permitted to be closed). Time is of the essence of all provisions of these Customer Terms and Conditions.
17. Interpretation. Throughout these Customer Terms and Conditions, unless a contrary intention is evident from the context: all references herein to the singular form of a word (including terms defined in these Customer Terms and Conditions) shall include the plural form, and vice versa; and all references to any gender includes each other gender; the word “including” (and correlative words, such as “include” and “includes”) shall not be as if followed by “without limitation”; and the word “or” shall be construed in the inclusive sense of “and/or”. all references to “writing” (and correlative words, such as “written”) include printing, handwriting, emailing and other means of reproducing words in a tangible visible form. No ambiguity or uncertainty shall be construed against a party because of its role in drafting. The captions in these Customer Terms and Conditions are inserted for convenience of reference only and shall not limit the interpretation of any provision herein. To the extent possible, the provisions of a Purchase Order and these Customer Terms and Conditions shall be construed as cumulative and consistent; however, in the event of a conflict between any provisions expressly stated in the Purchase Order and these Customer Terms and Conditions, the provisions in these Customer Terms and Conditions shall govern except to the extent that the Purchase Order expressly states that it supersedes these Customer Terms and Conditions, in which case the provisions of the Purchase Order shall govern but only as to that specific Purchase Order.
18. Entire Agreement. These Customer Terms and Conditions, together with any Purchase Order, constitute the entire agreement between CMI and Customer and shall not be amended except in a writing signed by both CMI and Customer.