Terms & Conditions
Metals USA, Inc., (“Seller”) and the party purchasing goods and/or materials (“Customer”) hereby agree to the following Terms and Conditions of Sale (“Terms and Conditions”):
1. Customer’s Acceptance of Terms. These Terms and Conditions of Sale constitute the final and entire understanding and agreement between Seller and Customer relating to the goods and/or materials (“Products”) sold by Seller to Customer. Customer’s acceptance of the Products is expressly conditioned on Customer’s acceptance of these Terms and Conditions. Customer’s acceptance is limited to these Terms and Conditions, and no different, inconsistent and/or additional terms and conditions submitted by Customer in acknowledging or accepting these Terms and Conditions or in issuing any purchase orders, releases, shipping instructions or other documents in connection with the Products, whether prior or subsequent, shall modify or amend these Terms and Conditions or be valid or binding against Seller, unless specifically accepted by Seller in writing. In the event of any conflict, discrepancy or inconsistency between these Terms and Conditions and the terms and conditions contained in any document submitted by Customer, these Terms and Conditions shall govern even if Customer’s document expressly limits acceptance to Customer’s terms and conditions. No course or pattern of dealings or conduct between Seller and Customer and no usage of trade shall be relevant to determine the meaning or intent of these Terms and Conditions even though the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity for objection.
2. Open Credit Account. Seller reserves the right in its sole discretion to approve, conditionally approve or disapprove any request by Customer for credit. The amount of credit Seller extends to Customer will be determined by Seller in its discretion and may vary from time to time. Customer shall notify Seller, in writing, of any error in any invoice within ten (10) days after the Customer’s receipt of such invoice, and, if no such notice from Customer is received by Seller, the invoice shall be deemed to be correct and payable as delivered to Customer.
3. Open Account Payment Terms. TIME FOR CUSTOMER’S PAYMENT OF THE PURCHASE PRICE FOR THE PRODUCTS SHALL BE OF THE ESSENCE. All sums owing Seller by Customer shall be paid in accordance with the provisions of Seller’s invoice or any written quotation issued by Seller and signed by Customer. In the absence of such express provisions, Seller’s terms will be net thirty (30) days from the date of invoice. All sums past due and owing to Seller shall bear interest at the rate of the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law from the invoice date until paid in full. All payments made by Customer to Seller shall be applied in the following priority: (a) first to the amounts, if any, due to Seller for attorneys’ fees and court costs, (b) second to the amounts, if any, due to Seller in the event of Customer’s default, (c) third to the amount, if any, of interest due to Seller as a result of Customer’s late payment and (d) finally to the balance of the purchase price due to Seller for the Products.
4. Customer’s Representations and Warranties. Upon Seller’s request from time to time, Customer will provide Seller with current financial information. Customer represents and warrants that any financial information provided to Seller 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 hereby authorizes Seller to review and evaluate Customer’s credit background from time to time.
5. Security Interest. To secure Customer’s full and prompt payment of the purchase price for the Products, Customer hereby grants to Seller a first priority, purchase money security interest in and to the Products and all products and proceeds therefrom. Customer authorizes Seller to file a UCC financing statement to perfect this security interest at any time.
6. Cancellation and Returns. Customer may not cancel any order of Products for Customer’s convenience without Seller’s prior written consent. Seller may, in its sole opinion, authorize Customer in writing to cancel Products normally carried in Seller’s inventory. Any cancellation so authorized shall be subject to a cancellation charge of 15% of the purchase price. Customer may not cancel any processed Products, specially manufactured Products, or Products not normally carried in Seller’s inventory.
7. Approval of Sale; Prior Sale. No sale shall be final until approved by the corporate office of Seller. All quotations for Products normally carried in Seller’s inventory are subject to prior sale, unless otherwise specified in writing by Seller. All quotations for specially manufactured Products and Products not normally carried in Seller’s inventory are subject to mill availability.
8. Price; Basis of Invoices. Seller’s price is subject to and contingent upon Customer purchasing the entire quantity of Products identified in Seller’s quotation. If Customer purchases less than the entire quantity of Products identified therein, prices may vary. Seller shall invoice all Products in accordance with Seller’s published schedule of weights, areas, sizes and lengths. All weights shall be theoretical and shall be determined in accordance with ASTM standards.
9. Force Majeure. Neither Customer nor Seller shall be liable for any delay, breach or non- performance of these Terms and Conditions (other than the payment of money) wholly or partly due to any cause beyond such party’s control (“Force Majeure”) including, without limitation, acts of God; war; civil disturbances; acts of any foreign, federal, state, local or other governmental authority; non-availability, delay or diversion of shipping or other transport; lock outs, strikes or trade disputes; break down or interruption of any plant, machinery, equipment or utilities; shortage, non-availability or allocation of raw materials or commodities; any combination of the foregoing, or any other cause outside of such party’s control whether similar to or different from those stated herein. On the happening of Force Majeure, the affected party shall advise the other party in writing with reasonable promptness and the affected party may suspend its performance during such Force Majeure without liability to the other party.
10. Title; Risk of Loss. All prices quoted by Seller are Ex Works Seller’s loading dock. Risk of loss shall pass to Customer at the time of delivery. Title 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.
11. Inspection; Claims. Customer shall carefully inspect all Products and shipping documents promptly upon delivery. No claim for shortages or Products damaged during delivery will be valid or enforceable against Seller unless (a) Customer notifies Seller in writing specifying in detail the shortage or damage within five (5) days from the date of delivery; (b) Customer returns the damaged Products to Seller within ten (10) days following delivery; (c) upon return, Seller 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 Products claimed to be short or damaged during transit. Customer shall be deemed to have waived any claim for shortages or Products damaged in transit if Customer fails to so notify Seller within five (5) days following delivery. Any processing or use of the Products by Customer, other than return to Seller, shall be conclusive as to Customer’s acceptance of the Products as being satisfactory and in accordance with these Terms and Conditions.
12. Limited Warranty. Seller warrants to Customer for a period of twelve (12) months following delivery only that (a) the Products shall conform to the description and specifications, subject to industry standard tolerances and variations; and (b) Seller has good title to the Products free and clear of liens, security interests or encumbrances by any party claiming by, through or under Seller. SELLER HEREBY DISCLAIMS AND CUSTOMER HEREBY WAIVES ANY AND ALL OTHER ORAL OR WRITTEN WARRANTIES IN RESPECT OF THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES UNLESS EXPRESSLY MADE IN WRITING AND SIGNED BY AN OFFICER OF SELLER.
Seller’s liability shall be limited, at Seller’s option, to repair or replacement of non-conforming
Products or refund of the purchase price. The foregoing sets forth Seller’s entire obligation and liability to Customer in respect of the Products, and Customer accepts the same as its entire right and sole remedy in relation to any breach by Seller of these Terms and Conditions. IN NO EVENT OR CIRCUMSTANCE WHATSOEVER SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY TYPE OR NATURE EVEN IF SELLER HAS REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES.
SELLER’S TOTAL LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THE PRODUCTS, WHETHER BASED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND/OR GROSS NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER CAUSE OF ACTION, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE ACTUALLY PAID BY CUSTOMER FOR THE PRODUCTS TO WHICH SUCH LIABILITY RELATES.
13. Unofficial Communications. No agents, employees, or representatives of Seller have any authority to bind Seller to any affirmation, representation, guaranty or warranty other than those expressly set forth in these Terms and Conditions. Any technical advice furnished by Seller with respect to the selection or use of Products is given without charge, and Seller 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.
14. Taxes. All prices quoted by Seller are exclusive of all taxes. In addition to the purchase price, Customer shall pay or reimburse Seller the amount of all sales, use and ad valorem taxes, excises, duties and/or other governmental charges that Seller may be required to pay with respect to the Products.
15. Indemnification. Customer shall indemnify, defend, and hold harmless Seller, its affiliates, and the shareholders, directors, officers, employees, agents, successors and assigns of all of them (collectively, the “Seller Indemnified Parties”) from and against any and all losses, claims, damages, injuries, liabilities, taxes, fines, penalties, costs or expenses (including attorneys’ fees and court costs) incurred or suffered by any of the Seller Indemnified Parties to the extent directly or indirectly arising out of, relating to or resulting from (a) Customer’s unloading, storing, handling, packaging, processing, fabrication, or use of the Products; or (b) any negligence, act, or omission of Customer, its employees, agents and anyone for whom Customer may be legally liable.
16. Default; Bankruptcy. Upon failure of Customer to make any payment required hereunder, without deduction, setoff or counterclaim, within ten (10) 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, Seller, without demand or notice of any kind and without prejudice to any other right or remedy of Seller, may (a) terminate the sale of all or any of the Products; (b) suspend the release of any Products on consignment to Customer and defer further deliveries; (c) require Customer to return or allow Seller to reclaim and/or pick-up any unpaid Products; (d) require Customer to pay the purchase price for any or all the Products not yet paid for in full (whether such Products are on-hand, in process or on-order, and whether or not delivered) and any other sums due from Customer to Seller, which Customer shall pay on Seller’s first demand notwithstanding any credit period or other forbearance; (e) place any Products identified to Customer in storage at the cost and risk of Customer; (f) apply any payments made by Customer as Seller may elect without regard to any appropriation by Customer; (g) sell any or all of the Products at such price as may be available but without having any duty to Customer to do so at the best or any particular price, and collect any shortage in price from Customer; and/or (h) exercise any other right or remedy that Seller may have at law or in equity in the event of Customer’s default. Seller 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 Seller.
17. Waiver. Any waiver of these Terms and Conditions, 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 Seller 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.
18. Governing Law and Venue. THESE TERMS AND CONDITIONS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH SELLER IS LOCATED WITHOUT REGARD TO ITS CHOICE OF LAW OR CONFLICTS OF LAWS PROVISIONS. ANY CLAIM, DISPUTE OR CONTROVERSY ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE PRODUCTS SHALL BE RESOLVED BY LITIGATION BROUGHT EXCLUSIVELY IN THE FEDERAL OR STATE COURTS HAVING JURISDICTION OVER SELLER’S LOCATION AND SELLER AND CUSTOMER IRREVOCABLY CONSENT TO THE JURISDICTION OF SAID COURTS.
19. Prevailing Party. In the event of any claim, dispute or controversy arising out of or relating to these Terms and Conditions, the prevailing party shall be entitled to recover it attorneys’ fees and court costs from the non-prevailing party.
20. Assignment and Third Party Rights. Neither party may delegate or assign its rights or obligations without the other party’s prior written consent, except that Seller may assign its rights and obligations to an affiliate upon prior written notice to Customer. Any delegation or assignment without such written consent shall be null and void, and without any legal force or effect. Notwithstanding Seller’s consent to any assignment or delegation by Customer, these Terms and Conditions shall be fully binding on Customer, its successors and permitted assigns. These Terms and Conditions shall not be deemed or construed as granting or conferring any rights in or providing any basis for claims by third parties.
21. Severability. If any provision contained in these Terms and Conditions 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 and Conditions 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 and Conditions and any other application thereof to the parties shall not in any way be affected or impaired thereby.
22. Acceptance/Enforceability of Copies. Seller may, at Seller’s sole discretion, accept a facsimile copy, electronic copy, or photocopy of any order between Seller and Customer in lieu of an original document. Customer consents to Seller’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 Seller to subsequently produce an original document.
23. Entire Agreement. These Terms and Conditions contain the final and entire agreement of the parties hereto with respect to the sale and purchase of the Products and all other transactions contemplated herein, and supersede all prior or contemporaneous discussions, negotiations, agreements or understandings, whether written or oral, between the parties relating to the subject matter hereof. These Terms and Conditions may be changed, amended, modified, revised or supplemented only by a written instrument signed by an authorized manager or officer of Seller.
Metals USA, Inc. (“Buyer”) and the party selling the goods and/or services (“Seller”) hereby agree to the following Purchase Order Terms and Conditions. The following terms and conditions apply to any purchase of goods and/or services by Buyer from Seller (the “Purchase Order”).
1. Agreement – By shipping the goods ordered hereby or acknowledging receipt hereof or performing the work requested hereby, Seller agrees to the terms and conditions set forth herein and in any attachments hereto or documents incorporated by reference, none of which may be added to, deleted, modified, superseded or otherwise altered except by a written instrument signed by an authorized representative of Buyer and delivered to Seller. Any different, inconsistent or additional items in any proposal, offer, acknowledgement of this Purchase Order, bill of lading, invoice, or other document issued by Seller, whether prior or subsequent hereto, are hereby rejected, notwithstanding any terms or conditions to the contrary that may be contained in any such document of Seller and notwithstanding Buyer’s act of accepting or paying for any goods and/or services or similar act of Buyer. If this Purchase Order shall be deemed an acceptance or acknowledgement of a prior offer by Seller, Buyer’s acceptance of such offer is expressly conditioned on Seller’s assent to any additional, inconsistent or different terms contained herein notwithstanding anything to the contrary in such offer. In the event of any conflict, discrepancy or inconsistency between these Purchase Order Terms and Conditions and those terms and conditions contained in any document submitted by Seller, these Purchase Order Terms and Conditions shall govern even if Seller’s document expressly limits acceptance to Seller’s terms and conditions.
2. Warranty – Seller expressly warrants that all goods and materials covered by this Purchase Order or other description or specification furnished by Buyer will be in strict accordance with such Purchase Order, description or specification and be free from defects in material and/or workmanship, and merchantable. Such warranty shall survive any inspection, delivery, acceptance, or payment by Buyer of said goods or materials, and Buyer reserves the right to cancel this Purchase Order, without liability to Seller, for breach of such warranty. Any deviations from this Purchase Order or description or specification furnished by Buyer, or any other exceptions or alterations, must be approved in writing by Buyer.
3. Shipment – TIME IS OF THE ESSENCE IN THE PERFORMANCE OF THIS PURCHASE ORDER. Shipments shall be made in accordance with Buyer’s shipping instructions which are subject to revision with respect to undelivered quantities. Buyer reserves the right to cancel all or any part of the undelivered portion of this Purchase Order if Seller does not make deliveries when and as specified or if Seller breaches any of the terms hereof. Any unauthorized quantity is subject to rejection, and such goods will be held at Seller’s risk and may be returned at Seller’s expense. Seller shall advise Buyer of any shortage or delay in shipment.
4. Invoices; Packages – Invoices, shipping notices and test reports must be rendered in duplicate together with original bills of lading or express receipts not later than the day following shipment. Each package shall be numbered and labeled with Buyer’s order number, contents, and shall contain an itemized packing slip. Buyer’s order number must appear on invoices and shipping notices.
5. Inspection – Delivery shall not be deemed to be complete until, and goods will be received subject to, Buyer’s inspection and acceptance at Buyer’s location, notwithstanding any agreement of Buyer to pay freight, express or other transportation charges. Risk of loss or damage in transit shall be on Seller. Defective goods or goods not in accordance with Buyer’s description or specifications may be rejected by Buyer, and Buyer, at its option (without prejudice to any other legal remedy), may hold such goods at Seller’s risk or return same to Seller at Seller’s risk and/or expense. If inspection discloses that part of the goods received are not in accordance with Buyer’s description or specifications, Buyer shall have the right to cancel any unshipped portion of this Purchase Order. Defects are not waived by acceptance of or payment for the goods or by failure to notify Seller thereof. Seller and Buyer each agrees to cooperate with the other if either party desires to file a claim against a third party for any loss of or damage to the goods in transit.
6. Price – Prices recorded in this Purchase Order are not subject to increase. If Seller’s quoted prices for the goods covered by this Purchase Order are reduced (whether in the form of a price reduction, close-out, rebate, allowances, or additional discounts offered to anyone) at time of any shipment, Seller agrees that the price to Buyer for such goods will be reduced accordingly, and that Buyer will be billed at such reduced prices. If price is not stated in this Purchase Order, it is agreed that the goods shall be billed at the price last quoted by Seller or the prevailing market price, whichever is lower. This Purchase Order must not be filled at a price higher than last quoted or charged without Buyer’s specific written authorization. Seller represents that the prices and terms of purchase and any allowances available shall be in full compliance with the Robinson Patman Act.
7. Extra Charges – No additional charges of any kind, including charges for boxing, burlapping, packing, packaging, cartage, storage, insurance or other extras will be allowed unless specifically agreed to in writing in advance by Buyer.
8. Cancellation – Buyer reserves the right, at any time and from time to time without cause, to cancel all or any part of the undelivered portion of this Purchase Order by notice to Seller. In the event of such cancellation, Buyer shall not be liable to Seller for loss of anticipated profits. The provisions of this paragraph shall not limit or affect Buyer’s right to terminate this Purchase Order for default of Seller.
9. Compliance with Applicable Law – This Purchase Order is placed by Buyer with the understanding, and, in accepting the same, Seller warrants that it shall comply with all federal, state and local laws, regulations, rules and ordinances including those pertaining to noise, pollution and safety standards applicable to the manufacture and sale of the goods and services ordered hereby and the performance hereof. Seller further warrants that any equipment furnished pursuant to this Purchase Order will meet existing federal and state noise, pollution and safety standards. Seller further agrees to abide by existing federal and state laws, regulations, rules and ordinances pertaining to non-discrimination, including the non- discrimination provisions of Executive Order 11246, as amended. Seller agrees in the performance of this Purchase Order to comply with the provisions of the Fair Labor Standards Act of 1938, as amended. Seller further agrees that it will not discriminate against any employee or qualified applicant for employment because he or she is a disabled veteran or veteran of the Vietnam Era (Section 402 of the Vietnam Era Readjustment Act of 1974); because of physical or mental handicap in regard to any position for which the employee or applicant for employment is otherwise qualified (Section 503 of the Rehabilitation Act of 1973) or because he or she is a member of any other class protected by applicable federal or state laws, regulations, rules and ordinances.
10. Release – Seller waives all claims, demands, actions, causes of actions, suits and proceedings against Buyer for, and releases Buyer from all liability or responsibility of any kind arising from, the death of or injury to persons or loss or damage to property sustained in connection with the performance of this Purchase Order unless and except to the extent caused by the intentional misconduct of Buyer or its employees acting within the scope of their employment.
11. General Indemnity – Seller assumes the risk of all damage, loss, cost, and expense, and agrees to indemnify, defend and hold harmless Buyer, its affiliates and customers, and all of their respective directors, officers, agents, employees successors and assigns (collectively, the “Buyer Indemnified Parties”), from and against any and all liability, damage, loss, cost and expense which may accrue to or be sustained by any Buyer Indemnified Party on account of any claim, suit or action made or brought against any Buyer Indemnified Party for the death of or injury to persons or destruction of property involving Seller, its employees, agents and representatives, sustained in connection with performance of this Purchase Order, arising from any cause whatsoever unless and except to the extent caused by the intentional misconduct of Buyer or its employees acting within the scope of their employment.
12. Patent Infringement – Seller will indemnify and hold harmless the Buyer Indemnified Parties from and against any and all liability, damage, loss, cost or expense which may accrue to or be sustained by any Buyer Indemnified Party on account of any claim, demand, suit, action or proceeding made or brought against any of them for actual or alleged violation, infringement or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right arising out of, relating to or resulting from the manufacture, sale, resale or use of any goods furnished hereunder or any part thereof, and Seller will defend any such claim, suit, action or proceeding at Seller’s expense, and Buyer (and any Buyer Indemnified Party against whom any such claim, suit, action or proceeding is brought) may be represented by its own counsel in connection with any such claim, suit, action or proceeding.
13. Force Majeure – Buyer shall not be in default of this Purchase Order or liable to Seller for failure of Buyer to take delivery hereunder, or delay in taking shipments, if occasioned by fire, explosion, flood, earthquake, war, riots, insurrection, civil disturbance, accident, storm, interruption or delay in transportation, shortages, strike or other labor dispute, inability to obtain materials and supplies, acts of government, any act of God, or any other causes of like or different character beyond Buyer’s control. At Buyer’s option, the total quantity covered by this Purchase Order may be reduced by the amount of omitted shipments or the specified delivery period extended by a time equal to that during which shipments shall be so omitted and such shipments made during the period of extension.
14. Assignment – This Purchase Order and Seller’s duties hereunder may not be delegated or assigned by Seller without Buyer’s written consent, and any assignment attempted without such consent shall be null and void and shall effect, at Buyer’s option, a cancellation of all of Buyer’s obligations hereunder. Buyer may assign this Purchase Order and its interest therein to any affiliate or successor without the consent of Seller.
15. Entire Agreement – These Purchase Order Terms and Conditions contain the final and entire agreement of the parties hereto with respect to the sale and purchase of the goods and services and all other transactions contemplated herein and, supersede all prior or contemporaneous discussions, negotiations, agreements or understandings, whether written or oral, between the parties hereto relating to the subject matter hereof. These Purchase Order Terms and Conditions may be changed, amended, modified, revised or supplemented only by a written instrument signed by an authorized manager or officer of Buyer.
16. Conflict with Applicable Law; Severability – In the event any provision of these Purchase Order Terms and Conditions 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 Purchase Order Terms and Conditions and replaced with a provision that is valid, legal and enforceable to the fullest extent of applicable law and the validity, legality and enforceability of the remaining provisions of these Purchase Order Terms and Conditions and any other application thereof to the parties shall not in any way be affected or impaired thereby.
17. Interpretation – This Purchase Order shall be governed by and construed according to the laws of the State in which Buyer is located without regard to its conflicts of laws provisions. The application of the United Nations Convention on Contracts for the International Sales of Goods (1980) is excluded.
18. Conflict Minerals – Supplier must provide material that is “DRC conflict free” as defined by applicable SEC rules. Any required conflict mineral content must be from recycled or scrap sources or originate from outside of the DRC Covered Countries. Material that contains conflict minerals that originated in a DRC Covered Country will be deemed non-conforming and unacceptable.
19. Limitation of Liability – IN NO EVENT OR CIRCUMSTANCE WHATSOEVER SHALL BUYER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY TYPE OR NATURE EVEN IF BUYER HAS REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. BUYER’S TOTAL LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THE PURCHASE ORDER, WHETHER BASED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND/OR GROSS NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER CAUSE OF ACTION, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE FOR THE GOODS OR SERVICES TO WHICH SUCH LIABILITY RELATES.
20. Waiver – Any waiver of these Purchase Order Terms and Conditions, to be valid or binding, must be in writing and signed by the party against which it is to be enforced, and shall not constitute a continuing waiver of any other breach or default, and payment by Buyer 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.