Toledo Shredding, LLC Terms and Conditions of Sale

 

Last modified: December 22, 2016

 

  1. Terms and Conditions; Parties; Order. These Terms and Conditions of Sale (“Terms and Conditions”), together with the terms and conditions of the Order (as defined below) are collectively referred to herein as the “Contract.”  Any conflict between these documents will be resolved in the following order of priority: Order; Terms and Conditions. The Contract constitutes the entire agreement between the parties with respect to the subject matter, and supersedes all prior negotiations, representations or agreements, written or oral, and may not be supplemented by any course of dealing, course of performance, or trade usage, unless otherwise provided herein. As used herein, every purchase order (“Order”), whether written, faxed, or electronically transmitted to Toledo Shredding, LLC (“Toledo Shredding”), is subject to all terms and conditions contained in these Terms and Conditions.
  2. Acceptance. Receipt of this Contract by Buyer or Buyer’s acceptance of delivery of any material (“Material”) specified in this Contract shall be deemed to be an acceptance by Buyer of the terms and conditions of this Contract regardless of whether or not the Buyer has acknowledged this Contract.  Receipt by Toledo Shredding of an Order or its shipment of products to Buyer does not constitute an acceptance by Toledo Shredding of any term or condition of such purchase order or any proposed terms and conditions.  Any conditional or inconsistent terms or conditions are not binding on Toledo Shredding unless agreed to in writing by Toledo Shredding. All purchase orders are subject to acceptance by Toledo Shredding.  No notice of cancellation or termination shall relieve Buyer from any obligations created by any purchase order, to which this Contract applies, without the prior written consent of Toledo Shredding, which consent may be withheld in Toledo Shredding’s sole and absolute discretion.
  3. Warranties, Representations, and Covenants. Material specified in this Contract is sold for the sole purpose of remelting or recycling, and Toledo Shredding warrants the Material will conform to the description of the Material on the face of this Contract with variations in size, composition, and quality consistent with norms in the trade.  Toledo Shredding makes NO OTHER EXPRESS OR IMPLIED WARRANTIES, AND HEREBY DISCLAIM ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  IN NO EVENT WILL TOLEDO SHREDDING’S LIABILITY ARISING IN CONNECTION WITH THE MATERIALS OR ORDER (REGARDLESS OF CAUSE AND REGARDLESS OF THE THEORY OF LIABILITY ASSERTED BY BUYER, WHETHER CONTRACT, TORT OR OTHERWISE) EXCEED THE PURCHASE PRICE FOR THE MATERIALS.
    If the Material fails to conform to the specifications or grade described in the Contract, Toledo Shredding will, at its option, provide a purchase price adjustment consistent with the course of performance or usages in the trade for any Material that can be reasonably used by Buyer or provide a replacement shipment. Buyer agrees to load all nonconforming Material for shipment to Toledo Shredding or to another location selected by Toledo Shredding and Toledo Shredding will arrange for the transportation of all nonconforming Material that Toledo Shredding has authorized Buyer to return.
  4. Inspection. Buyer will inspect each shipment of Material within one (1) business day of arrival at destination and immediately notify Toledo Shredding of any nonconforming Material for which Buyer rejects the shipment in part or in whole.  If Buyer fails to give Toledo Shredding such notice, all Material contained in any such shipment will be deemed to conform to this Contract, and Buyer will be deemed to have accepted the Material upon unloading and release of the transporting vehicle.
  5. Price Changes. If the price stated in this Contract is based on market pricing as published in trade publications such as “Scrap Price Bulletin” or “American Metal Market” then Toledo Shredding reserves the right to adjust its pricing formula in the event that such publication makes it known that they have reassessed or changed their market appraisals independent of the market move for that month.  Such non-market move driven changes are typically clearly marked by the publication.
  6. Payment; Invoices. Buyer will make payment to Toledo Shredding in the manner and strictly in accordance with the payment terms set forth on the face of this Contract.  Shipment of Material specified in this Contract is subject to approval of Toledo Shredding’s Credit Department.  Toledo Shredding, in its sole discretion, may at any time decline to make shipment (“Credit Hold”) prior to receipt of payment or adequate assurances of payment.  In the event of any Credit Hold, the time period specified in this Contract for shipment shall be extended for a period equal to the time lost by reason of the Credit Hold.
  7. Buyer Representations and Warranties. Buyer hereby represents and warrants to Toledo Shredding that Buyer is solvent as that term is defined in the Uniform Commercial Code (“UCC”) and has the unrestricted ability to pay its debts in the ordinary course of business as and when such debts are due and payable.  Buyer also acknowledges and agrees that each purchase order or request from Buyer to Toledo Shredding shall constitute a written reaffirmation of Buyer’s representation of solvency as of the date of Buyer’s request, which representation shall be deemed to grant to Toledo Shredding the maximum right of reclamation available at law or in equity under either under the UCC or any other applicable state law, or in any bankruptcy or insolvency proceeding.
  8. Title and Risk of Loss. Risk of loss of the Material passes to Buyer at the F.O.B. point specified in this Contract.
  9. Security Agreement. Toledo Shredding shall have, and Buyer hereby grants to Toledo Shredding, a security interest in all of the Material, and in any proceeds thereof, to secure payment of the Contract price of the Material, and Toledo Shredding shall have all of the rights and remedies of a secured party under the UCC in force in the jurisdiction where Toledo Shredding seeks to enforce any of such rights or remedies.  If requested by Toledo Shredding, Buyer shall sign and deliver to Toledo Shredding such documents, in a form acceptable to Toledo Shredding, as Toledo Shredding may require in order to confirm or perfect its security interest in the Material and proceeds thereof.
  10. Delay or Failure to Perform. Toledo Shredding shall not be liable to Buyer for any failure to perform, failure to deliver, or for any delay in delivery due to an Act of God, act or omission of Buyer, any actions, events, conditions, inactions or any other cause beyond Toledo Shredding’s or its suppliers’ reasonable control.  In the event of any such delay, the date for performance or delivery shall be extended for a period equal to the time lost by reason of the delay.
  11. Termination and Cancellation. If Buyer breaches or repudiates any provision herein or fails to comply with this Contract, Toledo Shredding may at its option, (i) cancel this Contract, (ii) resell the Material in the open market after due notice and within a commercially reasonable time and recover from Buyer the difference between the market price of the Material at the time of resale and the Contract price, or (iii) obtain any other remedy or relief provided by law including, but not limited to, the right to a setoff against any amount Buyer is due from Toledo Shredding or its affiliate companies, provided, however, that written notice of such breach, repudiation, or noncompliance is provided to Buyer.
  12. Limitations of Liability, Remedy and Damages. IN NO EVENT WILL Toledo shredding BE LIABLE FOR ANY SPECIAL, INDIRECT INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INJURIES TO PERSONS OR TO PROPERTY OR LOSS OF PROFITS OR LOSS OF FUTURE BUSINESS OR REPUTATION, WHETHER BASED ON TORT OR BREACH OF CONTRACT OR OTHER BASIS, EVEN IF toledo shredding HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  13. Indemnification. Buyer shall indemnify, defend, and hold Toledo Shredding harmless from any claim, liability, damages, lawsuits, and costs (including attorney’s fees), whether for personal injury, property damage or other, brought by or incurred by Buyer, Buyer’s employees, or any other person, arising out of Buyer’s use, storage, sale, processing, application, or other disposition of the Material or products produced with the Material. This provision will survive the termination or expiration of this Contract.
  14. Assignment. No assignment of this Contract shall be made by Buyer without prior written consent of Toledo Shredding.
  15. Waiver. Toledo Shredding’s failure to require Buyer’s performance of any obligations hereunder shall in no way affect its rights to require such performance at any time thereafter.
  16. Severability. The invalidity and unenforceability of any term of this Contract shall not affect the validity and enforceability of the remainder of this Contract or any of its other terms, and such other terms shall be construed as though such invalid or unenforceable term was not included herein.
  17. Governing Law; Jurisdiction. This Contract shall be governed by, and construed and enforced in accordance with the laws of the State of Ohio, without giving effect to the conflict of law rules thereof. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this contract.  All parties hereby submit and consent to the venue and the jurisdiction of the Courts of the State of Ohio. Under no circumstances shall Toledo Shredding be subjected to the jurisdiction of foreign courts without its prior written consent.
  18. Amendment. No waiver, alteration or modification of the terms of this contract as herein set forth, nor any understanding or agreements not set forth herein shall be valid and binding upon Toledo Shredding unless made in writing and signed by a duly authorized representative of Toledo Shredding. Notwithstanding the foregoing, Toledo Shredding may make any changes to these Terms and Conditions without the consent of Buyer by emailing, mailing, or posting the updated terms and conditions on Toledo Shredding’s website. Toledo Shredding will use commercially reasonable means to inform Buyer of any such changes to the Terms and Conditions.