PAYMENT: Prices including any charges for extras shall be OMS’s prices and charges in effect at time of shipment. Prices are subject to change without notice. The amount of any tax which OMS may be required to pay or collect under any existing or future law upon or with respect to the sale, shall be for the account of the Customer and will be added to and become part of the price payable by Customer.
Customer agrees not to mark checks or other negotiable instruments “payment in full.” Checks and/or negotiable instruments that are marked “payment in full” are invalid and it will be assumed that the check has been tendered in bad faith and the check will not be accepted as full settlement on account even if deposited by OMS. Customer acknowledges there will be a charge payable by Customer of $25.00 per check for any check returned to OMS from its financial institution for any reason including, but not limited to, non-sufficient funds.
CREDIT: In consideration of credit being extended by Oakland Metal Sales, Inc. (hereinafter referred to as “OMS”) to you, you certify the truthfulness and veracity of the statements given to OMS, and you guarantee and bind yourselves to the faithful payment of all amounts purchased or now owing, by you or either of you, or any other person, firm, or corporation for OMS’ benefit. If credit is extended to a corporation in which you, or either of you, or you are an officer, or in which an interest exists, you will personally faithfully guarantee the payment of all credit extended to said corporation (individually and collectively referred to herein as “Customer”).
PAYMENT TERMS: If OMS elects to extend Customer credit, all invoice terms are net 30 days unless otherwise specified. A late payment of 1.5% per month will be charged on all past due accounts. In case Customer becomes, or is, insolvent, bankrupt or any proceeding materially affecting his business or property is instituted against Customer, or Customer fails to pay OMS’s invoices when due, OMS shall, at its option, be free to curtail or discontinue its sales or deliveries for so long as such conditions shall continue. Customer shall be responsible and obligated to pay all court costs, reasonable attorney’s fees, and other expenses incurred by the OMS in the collection and liquidation of Customer’s past due charges.
LIEN RIGHTS & SECURITY INTEREST: Customer as an inducement to OMS to sell and deliver the items agreed upon, hereby expressly represents to OMS that Customer has not done and will not do, either directly or indirectly, anything whatsoever which has, or will have, the effect of releasing, waiving, or surrendering the Mechanics’ or Construction Lien rights of OMS to the property to be improved. No Waivers of Lien for materials shall be required of OMS until the same shall have been fully paid for. Upon demand by OMS, Customer shall be obligated to immediately furnish OMS with all necessary legal documents and all other relevant information necessary for OMS to perfect a Mechanics’ Lien or Construction Lien. Customer agrees to pay for all court costs, recording fees, reasonable attorney’s fees, and other expenses necessary incurred by OMS in securing OMS’s Mechanics’ Lien, Construction Lien rights, or to enforce the terms contained herein in the event of default by the Customer including, but not limited to, Customer’s failure to pay. . Customer will give OMS a security interest in Customer’s accounts receivable and assets in addition to the products provided by OMS. Customer agrees to effectuate this understanding in any written form as may be requested and provided by OMS.
FORCE MAJEURE: OMS shall not be responsible for any failure or delay in the performance of orders or in the delivery of shipment of goods or for any damages suffered by Customer by reason of such failure or delay when such failure or delay is directly or indirectly caused by or in any manner arise from labor disputes, fires, floods, wars, acts of God, fires, explosions, riots, or other casualties, public disturbances, governmental regulations, transportation delays, strikes, lockouts, lack or shortages of labor, materials, utilities, energy source, or transportation facilities or other causes or conditions of similar nature or otherwise beyond the control of OMS.
DELIVERY: OMS is not responsible for damage in transit. OMS’ terms are F.O.B. OMS’ locations. OMS promise to deliver the materials in good order to a common carrier or OMS’ truck at our locations. Consignee is responsible to note any shortages and/or file freight claim. If shipment is short or damaged, accept delivery and have driver note all shortages or damage to freight upon receipt.
LIMITED WARRANTY: Customer acknowledges that OMS is not the manufacturer of products distributed by OMS and further acknowledges that OMS has made no representation, either express or implied, as to the fitness, quality, design, condition, capacity, ability, durability or performance of such materials and of the workmanship thereof. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY. Customer agrees that it shall look solely to the manufacturer of such materials for any loss Customer may sustain as a result of a defect in any such materials. Moreover, OMS is not responsible for any damage that may be caused by the goods supplied by OMS or as requested by Customer and provided by OMS. OMS shall have no liability thereof unless specifically stated in writing by OMS.
RETURNS: All claims for defective goods or for errors or shortages in goods delivered by OMS shall be made in writing by Customer within ten (10) days after receipt of the goods by Customer. Failure to notify OMS of any defects, errors or shortages within such period shall constitute an unalterable acceptance of the goods and an admission that Customer will comply with all the terms and conditions of the contract between the parties. OMS, in its sole discretion, will determine if the goods are defective due to OMS’ acts and OMS, in its sole discretion, shall determine whether it deems a refund or replacement. Oil canning is not basis for rejection of goods, returns, or back charges. OMS will not accept returns or back charges unless OMS has authorized them in writing. Customer may be responsible for costs of a return including, but not limited to, re-stock fees and inspections fees. Liability of OMS for goods found to be defective or not in accordance with agreed specifications, or for other breach of contract, may result in the replacement of goods or repayment of the purchase price therefore, as OMS shall elect in its sole discretion.
LIMITATIONS OF LIABILITY: OMS SHALL NOT BE LIABLE FOR ANY LOSSES, DAMAGES OR EXPENSES WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES OF ANY KIND WHATSOEVER. OMS’ TOTAL LIABILITY WHETHER ARISING FROM OR ABASED ON CONTRACT, WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER CAUSE OR BASIS WHATSOEVER, IS STRICTLY LIMITED TO THE PURCHASE PRICE OF THE PRODUCTS INVOLVED.
TERMINATION: In the event, at the sole judgment of OMS it becomes necessary to consult an attorney and institute legal action to collect an unpaid balance or to enforce the terms and conditions contained herein, OMS shall be entitled to a judgment for such unpaid balance, accrued interest thereon, costs, and reasonable attorney’s fees incurred in such legal action. Any claims of errors or discrepancies in the billings must be submitted to OMS’ office in writing within ten (10) days of receiving a bill. Otherwise, all such objections are deemed waived and the account will become stated. If Customer fails to make payment when due, or if the financial responsibility of Customer becomes impaired or unsatisfactory to OMS, OMS may defer or discontinue further shipments without prejudice to any other lawful remedy until past due payments or assurances satisfactory to OMS of Customers’ credit are received or may terminate the agreement. In the event of such termination, Customer shall compensate OMS for any commitments, obligations, expenditures, expenses and costs OMS has incurred in connection with the agreement. Each delivery by OMS shall be considered a separate transaction and be paid for separately without regard to subsequent deliveries.
WAIVER OR INVALIDITY: Waiver of OMS of any provision or of the breach of any provision shall not be construed as a waiver of any other provision or of any other breach of any provision. The invalidity of any provision shall not affect the validity of the remaining provisions or of the contract as a whole.
APPROVAL REQUIRED: It is understood that there is no contract until final approval from OMS’ office is granted. Such approval may be signified by the delivery of goods that may be ordered from time to time.
CHOICE OF LAW: Further, it is agreed that any disputes arising between the parties will be determined by the law of the State of Michigan. Any action of law, suit in equity or other judicial proceeding with respect thereto shall be brought and maintained in the federal and state courts in the State of Michigan, County of Oakland. Customer hereby waives any objections or defenses to the choice of forum.
NO OTHER TERMS: No terms and conditions, other than those stated herein, and no agreement or understanding, oral or written, in any way purporting to modify these terms or conditions, whether contained in Customer’s purchase or shipping release forms, or elsewhere, shall be binding on OMS unless hereafter negotiations, and representations, if any, made prior hereto or concurrently herewith are merged herein. The captions to the foregoing clauses are informational only and of no legal force and effect.
GUARANTY AGREEMENT: In consideration of the extension of credit granted by Oakland Metal Sales, Inc., the undersigned does hereby unconditionally personally guaranty payment of whatever amount the Credit Applicant, named on Page 1, shall at any time be owing to on account of goods and materials hereafter delivered, furnished, or supplied, whether said indebtedness is in the form of notes, bills, or open account. It is understood that this is a personal guaranty and not a corporate guaranty. This shall be an open and continuing guaranty and shall continue in force notwithstanding any change in the form of such indebtedness, or renewals or extensions granted by Oakland Metal Sales, Inc., without obtaining any consent thereto, and until expressly revoked by written notice from me to you and any such revocation shall not in any manner affect my liability as to any indebtedness contracted for prior thereto. The undersigned Guarantor further agrees to pay all expenses, including court costs, reasonable attorney’s fees paid or incurred by Oakland Metal Sales, Inc. in collection of any of all amounts owed them by the Credit Applicant or any lawsuit relating to the sale of goods or in enforcing this guaranty agreement.
This guaranty shall be a continuing, absolute and unconditional guaranty and shall be enforceable by Oakland Metal Sales, Inc.
All diligence in collection or protection and all presentment, demand, protest and/or notice as to anyone or everyone, of dishonor and default and of nonpayment and of the creation and existence of any and all guaranteed debts and of any and all extensions of credit and indulgence hereunder, are expressly waived. I further waive any right to require Oakland Metal Sales, Inc. to proceed against, or make any effort at collection of the guarantied indebtedness from, the Credit Applicant or any other party liable for such indebtedness.
The liability of the undersigned Guarantor(s) shall be joint and several. Payment from the Guarantor of monies due and owing as a result of the guaranty agreement shall be due upon demand by Oakland Metal Sales, Inc.