Terms and Conditions of Sale.

1. Definitions

a. “Company” - OGC USA, Inc.

b. “Purchaser” - individual or entity identified on Buyer’s purchase order, or if different, on the Company’s quotation, order acknowledgement or statement of work.

c. “Metal Surcharge” - the surcharge made to the Company by the manufacturers to reflect the changing cost of metallic elements, such surcharge being notified to the Company periodically.

d. “Special packaging” - Any packaging, packing or covering other than that normally supplied by the Company.

2. Acceptance

The Company only sells or supplies goods on these conditions which in the case of conflict shall override any terms or conditions imposed by you and which can only be varied in writing signed by the Company’s duly authorized representative. All representations made by or on behalf of the Company, whether written or oral, are hereby withdrawn and superseded by these terms and conditions of sale.
The Company’s quotations are estimates and are without commitment and any order placed is not binding on the Company unless accepted by providing a formal written order acknowledgement. By placing an order, the Purchaser agrees to the terms and conditions within.

3. Payment

Unless the Purchaser has an approved credit account with the Company all goods must be paid for prior to delivery. Any Purchaser wishing to open a credit account with the Company must submit a completed credit account application form for consideration by the Company. All parts of the form are to be completed. The Company may give credit entirely at its discretion and may refuse or withdraw credit without specifying any reason.
If credit is given the following provisions apply.
Payment must be made in full within 30 days, or the agreed upon number of days, as stated in the credit agreement, from the end of the month of delivery.
The Purchaser shall not be entitled to withhold payment of any amount to the Company because of any disputed claim with the Purchaser in respect of defective goods or other alleged breach of contract, nor shall the Purchaser be entitled to set off against the amount payable under the contract any monies by way of cross claim, set off or for other deduction whatsoever.
Payment to the Company shall not in any circumstances be dependant upon payment to the Purchaser from any third party.
In the event the Purchaser does not submit payment per the terms above, the Company reserves the right to withhold goods until such payment has been received.

4. Prices

All prices quoted are exclusive of sales tax or any other similar charge or levy. The Purchaser shall be responsible for the payment of any tax or duties or any other costs of importation and of obtaining all licences relevant to the sale and delivery of and payment for the goods.
Unless prices have been expressly agreed upon by the Company, the price payable by the Purchaser shall be the Company’s price prevailing at the date of despatch.
Any price quoted for immediate delivery are only valid for the specific timeframe stated on the quotation where the quotation is given and is subject to the goods being held in stock by the Company.
Notwithstanding any quotation given the price may vary if the prevailing Metal Surcharge is changed. The Company reserves the right to charge a reasonable sum for any delivery in addition to our standard handling charge, in particular, but not confined, to any request for express delivery or special packaging

5. Performance

Although the Company will endeavor to meet delivery or completion requirements it shall be under no obligation to supply or deliver goods for any specified date. All dates quoted by the Company or included in the contract are estimates only unless the contract or quotation states upon it in writing “time is of the essence”.
The Company may suspend or cancel the whole or any part of the contract if by reason of circumstances beyond the Company’s control (including but without limitation to strike, lockout, labor dispute, failure or damage to machinery, insufficient supply of gas, electricity or water, fire, war, act of God, adverse weather or transportation problem) either the Company is prevented or hindered from performing its obligations or performance of those obligations is to a substantial degree rendered difficult. The Company shall have no liability for, or as a result of, any such suspension or cancellation.
Part delivery shall be deemed to represent separate contracts. Failure by the Company to deliver any instalment of goods shall not entitle the Purchaser to cancel or suspend performance of the contract or any other such instalments or contracts.
The Company does not supply goods or undertake work on approval and goods are not returnable except by express written agreement.
On delivery of the goods the Purchaser shall be responsible for unloading the goods from the vehicle, which must be completed promptly, and which must take place under the Purchaser’s direct supervision.
The Company shall have no responsibility, for anything that occurs during the process of unloading.

6. Claims

The Purchaser must inspect the goods on delivery and any defect or shortage must be notified to the Company within a 24-hour period and confirmed in writing within 4 days. The Purchaser must sign that the goods have been received and inspected.
The Company will not be liable for the cost of any rectification, finishing of the works or processes carried out on the goods unless the Purchaser has received the written agreement and authority for this to be undertaken.

7. Specification

All sizes quoted may not be exact, but the Company will endeavour to ensure that any sizes comply with industry standards or if agreed in writing the relevant National or International standard.
Any specifications, formulations dates of literature or statement as to contents suitability performance or otherwise issued and descriptions and samples given by the Company in connection with the goods offered in good faith are intended to be approximate only and shall not be deemed to constitute representation. The copyright on the Company’s design includes data sheets, packing and literature shall remain the property of the Company and no licence thereunder (except as to the use which the goods are supplied) shall be implied.

8. Retention of Title Clauses

Goods supplied by the Company shall be held at the Purchaser’s risk immediately on despatch to the Purchaser or into custody on the Purchaser’s behalf and the Purchaser should therefore be insured accordingly.
Property in goods supplied hereunder will pass to the Purchaser when: (a) the goods the subject of this contract: and (b) all other goods the subject of any other contract between the Company and the Purchaser which, at the time of payment of the full price of the goods sold under this contract, have been delivered to the Purchaser but not paid for in full, have been paid for in full.
Until full payment has been received by the Company, the Purchaser shall hold the goods in a fiduciary capacity for the Company in a manner which enables them to be identified as the goods of the Company and the Purchaser shall immediately return the goods to the Company should its authorised representative so request. All the normal incidents associated with a fiduciary relationship shall apply. The Purchaser’s right to possession of the goods shall cease if he does anything or fails to do anything which would entitle an administrator or administrative receiver to take possession of any assets or would entitle any person to present a petition for winding-up.

The Purchaser grants the Company an irrevocable licence to enter at any time any vehicles or premises owned or occupied by the Purchaser or in its possession for the purpose of repossessing and removing any such goods the property in which has remained in the Company under paragraph 2 hereof. The Company shall not be responsible for, and the Purchaser will indemnify the Company against liability in respect of damage caused to such vehicles or premises in such repossession and removal being damage it was not reasonably practicable to avoid.
Notwithstanding paragraph 3 hereof, the Purchaser shall be permitted to sell the goods to third parties in the normal course of business. In this respect the Purchaser shall act in the capacity of a Commission Agent and the proceeds of any such sale shall be held in trust for the Company in a manner which enables proceeds to be identified as such. The Company, as Principal, shall remunerate the Purchaser as Commission Agent a commission depending upon the surplus which the Commission Agent can obtain over and above the sum, stipulated under the original contract of supply, which will satisfy the Principal. If the goods the property of the Company are admixed with goods the property of any person other than the Purchaser, the product thereof shall be deemed to be owned in common with that other person. If any of the material supplied is incorporated in or used as material for other goods before payment, the property in the whole of such goods shall be and remain with the Company until such payment has been made. Any sale of such goods shall take place upon commission agency terms. The Company as Principal shall remunerate the Customer as Commission Agent a commission depending upon the surplus which the Commission Agent can obtain over and above the price which will satisfy the Principal.

9. Limitation of Liability

Nothing in these conditions shall apply to exclude or restrict any liability which cannot be excluded or restricted under Statute.
Subject to 10.1 above where loss or damage arises from breach of contract, negligence, misrepresentation or otherwise neither the Company, its employers or agents shall be under any liability to you or to a third party for any loss of profit or consequential loss or damage howsoever arising. Without prejudice to any of the clauses herein the Company shall in no circumstances be liable to the Purchaser or to any third parties for any loss or damage arising directly or indirectly from a failure to perform or delay in performing any obligation or from delay in delivery or completion.
Save as implied by statute or conditions & warranties whether express or implied relating to the goods and/or their suitability or fitness to for any purpose are hereby excluded.
The Company shall indemnify the Company, its employees and agents against all third-party claims relating in any way to the goods provided by us or arising from breach of or negligence in connection with the contract including but not limited to any claim arising from any infringement of any United States or international patent.
The Company’s pricing structure is based upon these limitations of liabilities and indemnities and the Purchaser is advised to consider obtaining its own insurance cover for any claims which we are (pursuant to this cause or otherwise) not liable for and any indemnity liability which may arise under this condition. Goods sold as “non-prime”, or goods accepted as such by the Purchaser are sold in their actual state, as seen, without warranty and with all faults regardless of whether the goods have been inspected by the Purchaser prior to delivery. Any statement, specification, or description or other information provided by the Company in respect of such goods is given in good faith, but the Company can accept no responsibility for its accuracy. Under no circumstances will the Company be under an obligation to replace or make good such goods or entertain any claim whatsoever in respect thereof. If the Buyer shall resell such goods the Buyer shall ensure that a provision in similar form to this condition is incorporated in the resale agreement unless prior to re-selling the goods, the Purchaser has caused the goods or such part of the goods as the Purchaser resells to comply with a recognised specification or standard.

10. Suspension and Termination

The Company may terminate the contract, without liability to itself and treat the Purchaser in breach of contract in the following circumstances whereupon all credit is withdrawn, and any monies owed to the Company for this, or any other, contract are immediately payable:

a. where the Purchaser is in breach of the terms of this contract with the Company.
b. where the Purchaser exceeds its credit limit.
c. where the Purchaser cannot pay its debts as they become due in the ordinary course of business.
d. where a winding up petition is presented other than for bona fide purposes of amalgamation or reconstruction.
e. where the Purchaser has a receiver or administrator appointed for the whole or part of the Purchaser’s assets.
f. when any monies are owed to the Company by the Purchaser for this or any other contract.
g. where the Purchaser, being an individual is made bankrupt or enters an arrangement with creditors.
h. where the Company has reasonable cause to expect that all or any of the above are likely to occur or an event analogous to the above occurs.

11. Assignment

The Purchaser may not assign the contract or any rights thereunder without the Company’s written consent.

12. Interpretation

Each condition shall be interpreted without reference to their headings. Any provision under these conditions held by a Court to be invalid shall be severable and shall to the extent necessary to prevent such invalidity be deemed to be omitted from these conditions any liability which would otherwise have been excluded or limited shall nevertheless be subject to the remaining provisions of these conditions.
The provisions of these conditions shall remain in force and effect notwithstanding that the parties’ obligations under the Contract may have been performed or discharged.
The waiver of any breach of any of these conditions and the non enforcement of any of these conditions shall not prevent the subsequent enforcement of that condition and the exercise of any right arising from that breach shall not be deemed a waiver of any subsequent breach.

13. Governing Law:

All matters relating to the interpretation, construction, validity and enforcement of this Contract will be governed by and construed in accordance with the domestic laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction other than the State of Michigan.

14. Jurisdiction:

Any and all disputes, claims, or controversies between the parties arising out of or in connection with this Contract shall be determined exclusively in a state or federal court located in Michigan and each party hereto hereby consents to the exclusive jurisdiction of any such court with respect to such matters. If either party files litigation with respect to any such matters in any other court or jurisdiction, such party shall, upon the request of the other party, immediately consent to either the dismissal of such litigation or, where permitted, the immediate transfer of that litigation to a state court located in Ottawa County, Michigan or the U.S. District Court for the Western District of Michigan as is appropriate.