DBW METALS RECYCLING
Terms and Conditions
1) If an F.O.B. point is not specified in this contract, the price stated is F.O.B. delivered the consignee. Regardless of the point of delivery, all material shall be received subject to the acceptance of the ultimate consumer, with the weights and grading of that consumer to govern. Rejected material remains Seller?s property at his risk and subject to his disposition. Rejected shipments are to be replaced at DBW Metals Recycling?s option.
2) Seller must load clean transportation equipment. Any expense or shortage incurred because of foreign matter in the shipment or because equipment is loaded in excess of or less than carrier?s loading rules, will be paid by Seller.
3) Time shall be of the essence in the performance of this contract. In the event of nonconformity, non-delivery, partial delivery or late delivery, DBW Metals Recycling may, at it?s option, cancel this contract or replace the material in this open market after due notice and within a reasonable time and recover from Seller the anticipated profit or difference between the market price of the material at the time of replacement and the contract price, whichever is greater. No extension of time granted by DBW Metals Recycling shall constitute a waiver of this provision. DBW Metals Recycling shall not be liable for any delay or failure of performance due to a request for delay by the consumer, strikes, acts of God, or other causes beyond it?s control, provided that DBW Metals Recycling shall have given notice to Seller of any such cause for delay, or anticipated delay, promptly following the commencement thereof. In the event of a delay for any of the foregoing reasons, and if requested by DBW Metals Recycling, the Seller shall, immediately upon receipt of the notice from DBW Metals Recycling, hold up delivery until further notice from DBW Metals Recycling, regardless of whether such hold extends beyond any delivery date specified in the contract. Upon receiving further notice from DBW Metals Recycling, the Seller shall promptly make delivery of the material specified in this contract.
4) The Seller agrees to indemnify and save harmless DBW Metals Recycling and it?s customers from and against any and all claims, demands, causes of action, actions, liabilities, losses, damages and expenses, including attorneys? fees (including without limitation actual, general incidental, consequential and special damages for injuries or damage to any person or property, or resulting from any suit or threatened suit for infringement of any patent, trade mark or trade name) arising out of the sale, transportation or use by DBW Metals Recycling or it?s customers of the material furnished by Seller hereunder. Seller shall procure and maintain product liability insurance in sufficient amount to conform to this requirement.
5) Notwithstanding any other warranty or limitation of warranty herein, Seller warrants that the metal scrap to be delivered under this contract does not contain any ?hazardous substance?, as that term is defined in 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act 42 U.S.C. 6901(14), except those ?hazardous substances?, which are integral constituents of the metallic fraction of the scrap metal. Seller further warrants that the metal scrap contains no radionuclides or radioactive materials. Seller will indemnify and hold DBW Metals Recycling and it?s customers harmless from any and all claims, demands, causes of action, actions, liabilities, losses, damages and expenses, including attorneys? fees, resulting in whole or in part from a breach of the foregoing warranties. If the material is rejected at destination, because of the presence of hazardous substances, radionuclides, or radioactive materials, DBW Metals Recycling shall have no responsibility for or title to the rejected material. Seller shall have sole responsibility for and shall ensure proper management of the material to prevent any release, or threat of release, of any such hazardous substances, radionuclides or radioactive materials to the environment. Unless Seller makes other arrangements, Seller shall return all such rejected material to it?s point of origin at Seller?s expense, or may otherwise manage the material and arrange for it?s disposal at Seller?s expense. If Seller refuses to remove the rejected material, DBW Metals Recycling may return it to it?s point of origin at Seller?s expense, or may otherwise manage the material and arrange for it?s disposal at Seller?s expense. Seller agrees to assume any and all liability for such shipment or management, and any and all liability resulting from the return or disposal of the rejected material.
6) Seller must furnish car or container numbers to DBW Metals Recycling upon loading. Any demurrage or other expense caused by the failure of Seller to furnish such information upon loading will be paid by Seller.
7) If Seller becomes insolvent or has a business failure, or commits an act of bankruptcy, or is adjudicated a bankrupt, or if at any time DBW Metals Recycling reasonably believes that Seller may fail to perform for one of the above reasons, or if Seller has failed to perform completely any other contract with DBW Metals Recycling, then DBW Metals Recycling may cancel this contract without liability to Seller.
8) No assignment of this contract shall be made without prior written consent of DBW Metals Recycling.