ACP Standard Terms and Conditions of Service
Coil Processors, LLC (d/b/a “Andes Coil Processors” and hereinafter referred to as “ACP”) and the party acquiring processing or other services from ACP (“Customer”) hereby agree to the following terms and conditions of service (“Terms of Service”):
1. Customer’s Acceptance of Terms of Service. These Terms of Service constitute the final and entire agreement between ACP and Customer relating to ACP’s services (“Services”) provided by ACP to Customer. Any conduct by Customer which recognizes the existence of a contract with ACP, including (without limitation) delivery of Material to ACP or acceptance of product delivery, will be conclusive evidence of Customer’s assent to these Terms of Service. Customer’s acceptance of the Services is expressly conditioned on Customer’s acceptance of these Terms of Service. Customer’s acceptance is limited to these Terms of Service, and no different, inconsistent or additional terms and conditions submitted by Customer in acknowledging or accepting these Terms of Service or in issuing any purchase orders, releases, shipping instructions or other documents in connection with the Services, whether prior or subsequent hereto, shall modify or amend these Terms of Service or be valid or binding against ACP, unless expressly agreed to in writing by an authorized manager or officer of ACP. In the event of any conflict, discrepancy or inconsistency between these Terms of Service and the terms and conditions contained in any document submitted by Customer, these Terms of Service shall govern even if Customer’s document expressly limits acceptance to Customer’s terms and conditions. No course of dealing between ACP and Customer and no usage of trade shall be relevant to determine the meaning or intent of these Terms of Service unless expressly agreed to in writing by an authorized manager or officer of ACP.
2. Open Credit Account. ACP reserves the right in its sole discretion to approve, conditionally approve or disapprove any request by Customer for credit. The amount of credit ACP extends to Customer will be determined by ACP in its discretion and may vary from time to time. Customer shall notify ACP, in writing, of any error in any invoice within five (5) days after the Customer’s receipt of such invoice, and, if no such notice from Customer is received by ACP, the invoice shall be deemed to be correct and payable as delivered to Customer. If Customer fails to pay for any services on terms or reasonable grounds for insecurity otherwise arise, ACP will have the right to revoke any credit Customer has or suspend further processing services until receipt of adequate assurance of performance from Customer.
3. Payment Terms. TIME FOR CUSTOMER’S PAYMENT OF THE PURCHASE PRICE FOR THE SERVICES SHALL BE OF THE ESSENCE. All sums owing ACP by Customer shall be paid in accordance with the provisions of ACP’s invoice or any written quotation issued by ACP and signed by Customer. In the absence of such express provisions, ACP’s terms will be net thirty (30) days from the date of invoice. ACP shall have the right to charge interest, at its sole discretion and regardless of past dealing, on all sums past due at the lesser of the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law from the due date until paid in full. Customer will pay all invoice amounts without setoff or deduction of any kind. Customer will pay all costs and expenses (including but not limited to reasonable legal fees) incurred by ACP to collect late payments or other amounts due from customer. All payments made by Customer to ACP shall be applied in the following priority: (a) first to the amounts, if any, due to ACP for attorneys’ fees and court costs, (b) second to the amounts, if any, due to ACP in the event of Customer’s default, (c) third to the amount, if any, of interest due to ACP as a result of Customer’s late payment, and (d) finally to the balance of the purchase price due to ACP for the Services.
4. Customer’s Representations and Warranties. Upon ACP’s request from time to time, Customer will provide ACP with current financial information. Customer represents and warrants that any financial information provided to ACP will be true and correct in all material respects and shall fairly and accurately present the financial condition of Customer as of the date of such financial statements. Customer covenants to provide ACP with updated credit references whenever requested by ACP and authorizes ACP to review and evaluate Customer’s credit background at any time.
5. Force Majeure. ACP’s performance will be excused upon and during continuation of any event, condition or occurrence beyond ACP’s reasonable control, including but not limited to fire, flood, storm, acts of God, war, civil insurrection, epidemic, pandemic, quarantine, acts of terrorism, labor disturbances and lack of transportation services, utilities or supplies.
6. Bailment. Title to and ownership of the steel or other materials (“Material”) Customer delivers to ACP for processing shall remain vested in the Customer. ACP is a toll processor of the Material and adds value to the Material by processing them. While the Material is in ACP’s possession, ACP shall use commercially reasonable efforts to care for and protect the Material from damage or loss. Customer agreed to pay the storage, in and out and other fees listed on ACP’s list of Additional Charges, as published from time to time by ACP.
7. Delivery; Risk of Loss. Unless otherwise expressly agreed in writing by an authorized manager or officer of ACP, customer pays the freight and the delivery term is F.O.B. ACP’s plant. Customer shall specify the type of carrier and routing. In the absence of such specification, ACP will select the carrier and routing and will not be liable for any delays or excessive transportation charges resulting from its selection. Risk of loss shall pass to Customer at the time of delivery. Responsibility for the Material stored or processed by ACP and risk of loss shall pass to Customer upon loading on the transportation facility (i.e., truck or railcar), irrespective of any freight allowance, prepayment of freight or delivery terms.
8. Shortages; Overages; Scrap; Tooling. Unless otherwise expressly agreed in writing by an authorized manager or officer of ACP, shortages of up to 5% and overages of up to 10% are allowed and acceptable to Customer and ACP. Scrap material resulting from the processing of the Material shall remain or become the property of ACP and Customer hereby assigns all right, title and interest in and to such scrap to ACP. Unless otherwise expressly agreed in writing by an authorized manager or officer of ACP, all tooling used by ACP in the processing of the Material shall remain the property of ACP. Invoices for tooling charges may be rendered prior to processing the Material.
9. Inspection; Visual Damage Claims. Customer shall carefully inspect all Material processed or stored by ACP and shipping documents promptly upon delivery. No claim for shortages or damage during delivery will be valid or enforceable against ACP unless (a) Customer notifies ACP in writing specifying in detail the shortage or damage within five (5) days from the date of delivery; (b) Customer returns the damaged Material to ACP within fifteen (15) days following delivery; (c) upon return, ACP confirms such damage; and (d) Customer has fulfilled all of the payment terms. Customer’s notice must be accompanied by the original freight bill, with notation on the face thereof by an authorized agent for the carrier as to the Material claimed to be short or damaged during transit. Customer shall be deemed to have waived any claim for shortages or damage in transit if Customer fails to so notify ACP within five (5) days following delivery. Any processing or use of the Material by Customer, other than return to ACP, shall be conclusive proof as to Customer’s acceptance of the Material as being satisfactory and in accordance with these Terms of Service.
10. Inspection; Hidden Damage Claims. Customer shall notify ACP if Material damage (physical or dimensional) is latent and only identified during the usage of the Material. No claim for hidden damage will be valid or enforceable against ACP unless (a) Customer specifies the alleged damage in written detail to ACP and returns the damaged Material to ACP within thirty (30) days following delivery; (b) upon return, ACP confirms such damage; and (c) Customer has fulfilled all of the payment terms. Any processing or use of the Material by Customer, other than return to ACP, shall be conclusive as to Customer’s acceptance of the Material processed or stored by ACP as being satisfactory and in accordance with these Terms of Service. For Material properly retuned by Customer, ACP will inspect the Material within thirty (30) days of receiving the Material and, if the return is accepted, ACP will either re-perform the Services to correct the non-conformity or issue a refund to Customer within 10 days of acceptance.
11. Limited Warranty. ACP warrants solely to Customer that, upon shipment, Material processed by ACP will conform to all agreed Service specifications (subject to published ACP or customary industry tolerances and variations). ACP will not be liable under any circumstances where the claimed damages result from rust or outside corrosion beginning prior to delivery of Material to ACP or subsequent to delivery of Material by ACP, any abuse or neglect of the Material by anyone other than ACP, any accident involving the Material caused by anyone other than ACP, or Customer providing incorrect information to ACP, including (without limitation) incorrect dimensions or specifications. In addition, ACP will not be liable under any circumstances where the claimed damages result from Customer or a third party failing to store, handle, use or distribute the Material in accordance with ACP specifications or best practices in the metals industry. OTHER THAN THIS LIMITED WARRANTY, ACP MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE QUALITY OR PERFORMANCE OF THE SERVICES.
12. Exclusive Customer Remedy. Customer may not reject Material for any reason other than breach of the limited warranties contained in the Terms of Service. Customer will promptly notify ACP in writing of any Material that does not conform to the limited warranties contained in the ACP Terms of Service. ACP will have a reasonable opportunity to inspect and test any such Material to verify non-conformance before any remedy is exercised. Material may not be returned to ACP without ACP’s prior approval and returns may be subject to additional charges. The Customer’s sole and exclusive remedy for breach of such limited warranties or otherwise relating to the Services shall be for ACP, at its option, to re-process such Material within a commercially reasonable time, or provide a refund or credit in the amount of the lower of cost or fair market value of, any Materials found by ACP or a court of competent jurisdiction or an arbitrator to breach such limited warranties. Re-processing shall be performed at the location designated by ACP and Customer may be required to return the Material to such location at Customer’s expense. ANY CLAIM OR CAUSE OF ACTION FOR BREACH OF SUCH LIMITED WARRANTIES OR OTHERWISE RELATING TO THE SERVICES MUST BE MADE OR BROUGHT, AS THE CASE MAY BE, WITHIN ONE YEAR AFTER THE CLAIM OR CAUSE OF ACTION HAS ACCRUED.
13. ACP’s Obligation or Liability. In no event will ACP’s obligation or liability for breach of contract or otherwise whether based in warranty, tort (including negligence or gross negligence), strict liability, or any other cause of action, exceed the price of any non-conforming or defective Services actually paid by Customer to ACP which are the subject of any dispute between ACP and Customer or any third party claim or cause of action. Customer shall be solely responsible for ensuring that all specifications and instructions provided to ACP by Customer or any of its agents are accurate and suitable. ACP’s conformance to such specifications or instructions shall not result in any liability on the part of ACP. The Customer is ultimately responsible for determining specifications, instructions and Material suitability for a particular application. ACP SHALL NOT BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES SUFFERED BY SUCH OTHER PARTY (INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST SAVINGS, OR LOST PROFITS SUFFERED BY SUCH OTHER PARTY), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE OF ANY KIND WHETHER ACTIVE OR PASSIVE, AND REGARDLESS OF WHETHER THE PARTIES KNEW OF THE POSSIBILITY THAT SUCH DAMAGES COULD RESULT.
14. Unofficial Communications. No agents, employees, or representatives of ACP shall have any authority to bind ACP to any affirmation, representation, guaranty or warranty other than those expressly set forth in these Terms of Service. Any technical advice furnished by ACP with respect to the selection or use of Services is given without charge, and ACP assumes no obligation or liability whatsoever for the advice given or the results obtained, all such advice being given and accepted at Customer’s sole risk.
15. Taxes. All prices quoted by ACP are exclusive of all taxes. In addition to the price of the Services, Customer shall pay or reimburse ACP the amount of all sales, use and ad valorem taxes, excises, duties or other governmental charges that ACP may be required to pay with respect to the Services.
16. Mutual Indemnification. Each of ACP and Customer (an “Indemnitor”) will indemnify, defend and hold the other (an “Indemnitee”) harmless from and against all claims, suits, costs and liabilities to the extent arising from (a) Indemnitor’s breach of the Terms of Service, including but not limited to ACP’s breach of the limited warranty contained in Section 11 of the Terms of Service, (b) claims arising out of the Indemnitor’s negligence or willful misconduct, or the negligence or willful misconduct of Indemnitor’s employees, agents or representatives, and (c) claims arising out of matters which are the responsibility of Indemnitor, or Indemnitor’s employees, agents or representatives. Items for which Customer is required to indemnify, defend and hold harmless ACP include (without limitation): (i) the obligation to pay taxes, tariffs or charges pursuant to Section 15, (ii) rust or outside corrosion beginning prior to delivery of Material to ACP or subsequent to delivery of Material by ACP, (iii) any abuse or neglect of the Material by anyone other than ACP, (iv) any accident involving the Material caused by anyone other than ACP, (v) Customer providing incorrect information to ACP, including (without limitation) incorrect dimensions or specifications, (vi) Customer or a third party failing to store, handle, use or distribute the Material in accordance with ACP specifications or best practices in the metals industry, and (vii) the failure to comply with Section 18 or any privacy or data protection laws applicable to the Customer. Indemnitee shall not be indemnified against the harm caused by its own negligence or willful misconduct, or the negligence or willful misconduct of Indemnitee’s employees, agents or representatives. Furthermore, this indemnification provision shall not negate the availability of tort defenses, such as contributory negligence, or alter any applicable rules regarding comparative fault. Indemnitee shall not be entitled to invoke this indemnification provision in an effort to expand any limitations of liability or exclusive remedies expressed in the Terms of Service. As a condition precedent to indemnification, the Indemnitee is required to give reasonable written notice of the claim to Indemnitor and cede control of the defense of any such claim to Indemnitor. Indemnitee shall also provide reasonable cooperation to the Indemnitor in defending such a claim at the expense of the Indemnitor.
17. Default; Bankruptcy. Upon failure of Customer to make any payment required hereunder, without deduction, setoff or counterclaim, within five (5) days after the same becomes due, or if Customer defaults in the performance of any other obligation, term, or condition, or if Customer shall make an assignment for the benefit of creditors, or in the event of a commencement of proceedings by or against Customer involving bankruptcy, insolvency, reorganization or arrangement, or in the case of other significant financial instability of Customer, ACP, without demand or notice of any kind and without prejudice to any other right or remedy of ACP, may (a) terminate the provision of all or any of the Services; (b) suspend the release of any Material in Customer’s possession and defer further deliveries; (c) require Customer to pay the purchase price for any or all Services not yet paid for in full (whether the underlying Material is on-hand, in process or on-order, and whether or not delivered) and any other sums due from Customer to ACP, which Customer shall pay on ACP’s first demand notwithstanding any credit period or other forbearance; (d) place any Material owned by Customer in storage and/or require Customer to remove such Material from ACP’s plant within 30 days of notice at the cost and risk of Customer; (e) apply any payments made by Customer as provided in Section 3; and/or (f) exercise any other right or remedy that ACP may have at law or in equity in the event of Customer’s default. ACP is entitled to immediate relief from the automatic stay should Customer file for protection under the bankruptcy code. Customer agrees not to oppose relief from the automatic stay if sought by ACP.
18. Privacy Consent Notice: ACP collects and maintains certain personal data in its business-to-business relationships, as needed for the purposes described below, including the Customer’s representatives’ or employees’ name, title, email address, phone numbers and mailing address (“Personal Data”). Such Personal Data may be needed in order for ACP to be able to communicate with the Customer and to manage the provision of Services to the Customer. ACP may share Personal Data with its affiliates in order to support the provision of the Services. ACP and its affiliates will collect and use Personal Data in accordance with applicable privacy and data protection laws in order to communicate with the Customer regarding existing and potential service activities, for customer relationship management and other legitimate business purposes related to Customer’s and ACP’s relationship. It is the Customer’s responsibility to inform its employees and representatives of the information set out in this Section 18. It is also Customer’s responsibility to ensure the security and integrity of the Personal Data when it is in transit from the Customer to ACP. CUSTOMER CONSENTS AND WILL SECURE ALL NECESSARY CONSENT AND AUTHORITY OF ITS EMPLOYEES AND REPRESENTATIVES TO THE TRANSFER TO AND PROCESSING OF ANY PERSONAL DATA BY ACP OR ITS AFFILIATES, WHETHER LOCATED IN THE UNITED STATES OR ANY OTHER COUNTRIES, FOR THE PURPOSES DESCRIBED IN THIS SECTION OR FOR ANY OTHER PURPOSE TO WHICH CUSTOMER CONSENTS.
19. Waiver. Any waiver of these Terms of Service, to be valid or binding, must be in writing and signed by the party against which such waiver is to be enforced, and shall not constitute a continuing waiver of any other breach or default, and acceptance by ACP of any payments with knowledge of any breach or default shall not constitute such waiver. No omission or delay by either party in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or exercise of any other right, power, or privilege.
20. Governing Law and Venue. All offers, quotations, and contracts are subject to final acceptance by ACP at its offices. If the Customer is a U.S. resident, this agreement will be governed by and construed in accordance with the laws of the state where the applicable ACP office is located, without regard to its conflicts of law principles, and ACP and Customer agree that any disputes arising under or in connection with the agreement will be litigated, if at all, solely in a state and/or federal court located nearest to such ACP office. If Customer is not a U.S. resident, any claim or controversy arising out of or relating to the Terms of Service, including but not limited to its breach, existence, validity or enforceability, will be settled by binding arbitration by a single arbitrator under the Commercial Rules of Arbitration of the American Arbitration Association and conducted in the major American metropolitan area of which ACP’s office is a part, and the laws of the state where such office is located in the United States will govern the Terms of Service, irrespective of its conflicts of law provisions. The arbitrator’s ruling shall be final and may be enforced in any court of competent jurisdiction. The language of the agreement is English.
21. Prevailing Party. In the event of any claim, dispute or controversy arising out of or relating to these Terms of Service, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
22. Successors and Assigns. This agreement shall be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns. Neither party may delegate or assign its rights or obligations without the other party’s prior written consent, except that ACP may assign its rights and obligations to an affiliate upon prior written notice to Customer. Either party may assign the Terms of Service to a buyer of all or substantially all of the assets of such party who expressly assumes these Terms of Service. Any delegation or assignment without such written consent shall be null and void, and without any legal force or effect. These Terms of Service shall not be deemed or construed as granting or conferring any rights in or providing any basis for claims by third parties.
23. Notices. Any notice required herein shall be given in writing and in a manner expressly provided herein. Any such notice shall be effective as follows: (i) if sent via e-mail and mail, when transmission is confirmed and a hard copy has been deposited in the mail; (ii) if sent via overnight courier, on the next business day following deposit with a recognized overnight courier service; (iii) if sent via certified mail, on the fifth mail day following deposit with the postal service; or, (iv) if delivered by hand, when received by an agent or representative of the recipient. Any such notice must be addressed and sent to an authorized official of the recipient.
24. Severability. If any provision contained in these Terms of Service or the application thereof to the parties shall be finally determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such provision shall be deemed severed and deleted from these Terms of Service and replaced with a provision that is valid, legal and enforceable to the fullest extent permitted by applicable law and the validity, legality and enforceability of the remaining provisions of these Terms of Service and any other application thereof to the parties shall not in any way be affected or impaired thereby.
25. Acceptance/Enforceability of Copies. ACP may, in ACP’s sole discretion, accept a facsimile copy, electronic copy, or photocopy of any order between ACP and Customer in lieu of an original document. Customer consents to ACP’s use of such copy and waives any right to object to the use of a copy in place of the original and any right to require ACP to subsequently produce an original document.
26. Entire Agreement. These Terms of Service, the list of Additional Charges, and the final Quote issued by ACP (i) are a final written expression of all of the terms of the parties’ agreement with respect to the provision of ACP’s services and all other transactions contemplated herein, (ii) are a complete and exclusive statement of those terms, and (iii) supersede all prior or contemporaneous discussions, negotiations, agreements or understandings, whether written or oral, between the parties relating to the subject matter hereof. If there is any conflict between the Terms of Service and a Quote or list of Additional Charges, these Terms of Service shall control. This agreement may only be modified in writing pursuant to paragraph 27.
27. Amendment; Waiver: The Terms of Service may only be amended or supplemented by a written instrument signed by an authorized manager or officer of ACP and Customer. The Terms of Service may only be waived in a writing signed by a duly authorized representative of the party against whom enforcement is sought.