These Terms and Conditions (“Terms”) are integrated into the quote, order form, purchase order, or other ordering document (“Agreement”) between Doerrenberg North America, Tremblay Steel Division, LLC (“Company”) and the customer identified in the Agreement (“Customer”). These Terms shall apply to all re-orders and future transactions.

1.      PRODUCTS

1. Products. Customer shall purchase from Company the products and goods listed in the Agreement (“Products”). Acceptance of orders of such Products are subject to Company’s written confirmation.
2. Product Details. Details pertaining to the Products, such as illustrations, sketches, details of weights and dimensions contained in the brochures and catalogues shall be considered as approximate values according to standard industry practices. Weights shall be recorded on our calibrated scales and are binding for Proof of weight shall be provided via presentation of the weighing log. Unless an individual weighing is standard practice, the overall weight of the respective shipment shall apply.

2.      DELIVERY

1. Time Frame. Company will attempt to provide the Products within the general time frame provided to Customer. Although Company will work to provide the Products to Customer on a reasonable basis, Company cannot guarantee any particular shipment or delivery time.
2. Delivery. Company shall deliver the Products to Customer at the address specified by Customer at the cost of Customer. Delivery shall be made by Company EXW (Incoterms 2020) to the address specified by Customer (even in such cases where Company agrees to assume the costs of transport). In the absence of specific instructions, Company, in its sole discretion, shall arrange the delivery method including but not limited to transportation insurance, mode of transportation, and packaging. Transfer of risk to Customer shall be effected by the handover of the Products to the shipper or the departure of the Products from Company’s facility.
3. Acceptance. Customer shall inspect all Products within 10 days of receipt thereof and give written notice to Company of Customer’s rejection of any of such Products, including a description of any discrepancy between type and quantity ordered and the type and quantity delivered to Customer and of any defect in such Products. For the avoidance of doubt, Customer shall not reject Products that are without defect (and must correspondingly pay for such non-defective Products). Customer shall be deemed for all purposes to have accepted all Products that Customer does not so reject in writing within 10 days of receipt, which acceptance shall be deemed to include Customer’s acknowledgement that such Products conform to specifications as defined in the Agreement. Company shall have the right to confirm any discrepancy or defect alleged by Customer in any rejection notice. In the event that Company determines that the Products are defective or otherwise do not conform to the Agreement, Company, in its sole discretion, may: (a) replace the non-conforming or defective Products with conforming and non-defective Products; or (b) refund to Customer any amounts paid by Customer to Company for such defective or non-conforming Products in exchange for the return of the non-conforming or defecting Products to Company.

3.      FEES AND PAYMENT

1. Payment Terms. Customer will pay Company the fees and any other amounts due under the Agreement pursuant to the payment terms detailed in the Agreement. Fees are subject to change where order-related costs significantly change prior to delivery (as reasonably determined by Company).
2. Taxes. Customer will bear all taxes, duties, value added tax, and other governmental charges resulting from the Agreement.
3. Discounts. Discounts are only granted if Company has expressly agreed to Discount periods always begin on the date of invoicing, regardless of the time of receipt or delivery of the invoice. Payments must reach Company 3 banking days before the expiration of the discount period. In the event of a default in payment, any discount deductions for any other payments due are forfeited. Company hereby objects to any tacit agreements regarding a change in the discount conditions, even in cases where such discounts are long-standing practices.
4. Late Fees. Any amount not paid on the due date will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer shall reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Company to collect any late payments.
5. No Rights to Setoff. Customer has no right under these Terms, or by law, to set off, offset, withhold, reduce, deduct from, or refuse to pay any fees due to Company under the Agreement.
6. Suspension. Company may suspend its obligations under the Agreement (or otherwise terminate the Agreement) if (i) Customer fails to timely pay any fees to Company or (ii) Customer is otherwise in breach of these Terms.
7. Security Interest. Customer hereby pledges and grants to Company a continuing security interest in the Products and all proceeds from sale of the Products by Customer, including accounts receivable and cash receipts therefrom, to secure the prompt and complete payment and performance of all obligations owed by Customer to Company, including all amounts owed for the purchase price of any of the Products delivered hereunder. With respect to Products located in the United States, Customer acknowledges that Company holds a purchase money security interest in the Products and is entitled to all the rights and privileges with respect thereto. Customer authorizes Company to prepare and file with the appropriate governmental agencies Uniform Commercial Code financing statements, personal property security registrations or such other appropriate instruments to reflect such security interests.

4.      WARRANTIES AND DISCLAIMERS

1. Limited Warranty. Company hereby warrants, for the benefit of Customer only, the Products materially conform to the specifications in the Agreement. The remedies for non-conforming Products set forth in Section 2.3 of these Terms shall be the sole and exclusive remedy of Customer for breach of warranty.
2. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN, COMPANY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
3. Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THE AGREEMENT, EVEN IF COMPANY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
4. Cap on Liability. UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ALL KINDS FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THE AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (i) THE AMOUNT PAID BY CUSTOMER DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER OR (ii) ONE HUNDRED DOLLARS ($100.00).
5. Indemnification. Customer shall indemnify Company and its officers, directors, employees, agents, and affiliates (“Indemnified Party”), and hold them harmless from and against any and all claims, liabilities, losses, damages and expenses, including reasonable attorneys’ fees, costs of investigation, court costs and expert witnesses’ fees (collectively, “Damages”), arising out of any third-party claim alleging: (a) any uncured breach by Customer of any material representation, warranty, provision or covenant in the Agreement or (b) any noncompliance by Customer with any applicable law, rule or regulation; or (c) any claim for damages caused by Customer’s gross negligence, willful, or intentional misconduct; provided that Customer shall have no indemnification obligation under this Section for any Damages arising out of, or caused, in whole or in part, either directly or indirectly, by: (i) Indemnified Party’s negligence, willful misconduct, or fraud; or (ii) Indemnified Party’s uncured breach of any representation, warranty or covenant.

5.      INTELLECTUAL PROPERTY

1. Ownership. Each party is and shall at all times remain the exclusive owner of the party’s respective trade secrets, formulas, specifications, financial information, pricing strategies, compilations of information, records, artwork, trademarks, graphics, logos, designs and label copy, and any other proprietary or Confidential Information (as defined hereafter).
2. Confidentiality. As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a party (“Disclosing Party”) to or by the other party (“Receiving Party”), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement and (b) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

6.      GENERAL

1. Assignability. Customer may not assign its right, duties, or obligations under the Agreement without Company’s prior written consent.
2. Relationship. Company will be and act as an independent contractor in the performance of the Agreement. Nothing herein contained shall constitute a partnership between or joint venture by the parties or constitute any party the agent of the other. The Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any such party whether referred to herein or not. The parties hereto acknowledge and agree that the relationship between the parties shall be non-exclusive and that either party hereto may enter into a similar arrangement with any other party during the term of the Agreement and/or the termination hereof.
3. Modifications. Company reserves the right to update and change these Terms, without notice, by posting a new version on Company’s website. Please review these Terms periodically for changes.
4. Governing Law. The Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Ohio, without regard to any conflict of law provisions. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Summit County, Ohio, in connection with any action arising out of or related to the Agreement.
5. Force Majeure. Any failure by any of the parties hereto to carry out any of its obligations under the Agreement (except for the payment of any fees and expenses) shall not be deemed to be a breach of the Agreement or a default if such failure is caused by a Force Majeure event. “Force Majeure” events include, but are not limited to, acts of God, wars, restrictions, pandemics, national emergency, strikes, fires, floods, or other casualty, riots, insurrections, accidents, delays in transportation, rules and restrictions by law or government agencies, and other causes beyond the party’s control, whether or not the cause be of a class or character similar to those heretofore enumerated.
6. Competing Terms. No terms or conditions stated by Customer shall be binding on Company unless such terms or conditions are expressly accepted in writing by Company.