TERMS & CONDITIONS OF SALE
- 1.APPLICABILITY. These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by Ulbrich Stainless Steels & Special Metals Inc. and any of its subsidiaries or affiliates (collectively, the “Seller”) to the buyer named on the accompanying order acknowledgment (“Buyer”). The accompanying order acknowledgment (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer submitted its order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Seller may, in its sole discretion and at any time for any reason, change these Terms or any policies, instructions or guidelines applicable to the Goods and/or this Agreement. It is the Buyer’s responsibility to review, understand and comply with these Terms and any related policies, instructions or guidelines which may be updated from time to time and posted on the Seller’s website. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, then the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
- 2.MATERIAL AND PRICES.
- (a)Unless otherwise agreed to in writing by the parties: (i) all material is sold on a net weight basis, and (ii) scrap losses entailed in converting to Buyer’s requirements are absorbed by Seller.
- (b)Buyer shall purchase the Goods from Seller at the price(s) (the “Price”) in effect as of the date of shipment, and are subject to change without notice.
- (c)Surcharges will be Seller’s surcharges in effect at the time of shipment.
- (d)All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
- 3.PAYMENT TERMS.
- (a)Buyer shall pay the entire Price net thirty (30) days from the date of Seller’s invoice unless otherwise agreed upon in writing by the parties.
- (b)Buyer shall make all payments under this Agreement by wire transfer or check and in US dollars.
- (c)Buyer shall pay interest on all late payments at the lesser of the rate of 1% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
- (d)Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
- 4.ANALYSIS. Upon request and to the extent available, Seller will supply heat numbers, certified ladle analysis and/or standard mechanical test results. Non-standard mechanical, physical, or chemical analysis, in each case as defined by Seller, may result in charges to cover additional testing costs. All data provided on Seller’s certification and any analysis from a third party acting on behalf of the Seller will be in accordance with proper sample methodology. Notwithstanding the foregoing, or anything to the contrary contained herein, Seller makes no representations or warranties of any kind with respect to data gathered for analysis unless Seller has expressly agreed, and certified, to such data.
- 5.CANCELLATIONS. Cancellations will be accepted only on terms that will insure Seller against loss.
- (a)There are no guaranteed delivery dates. The Goods will be delivered within a reasonable time after the issuance of a Sales Confirmation. Seller shall not be liable for any delays, loss or damage in transit. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to Seller’s facility (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods.
- (b)Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s order.
- (c)If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
- (a)The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
- (b)The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence).
- (c)Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
- 8.INSPECTION AND REJECTION OF NONCONFORMING GOODS.
- (a)Buyer shall inspect the Goods within thirty (30) days of receipt (the “Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods (as defined below) during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Sales Confirmation; or (ii) product’s label or packaging incorrectly identifies its contents.
- (b)If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
- (c)Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
- 9.CHANGE ORDERS. If an order is changed by Buyer after production has started on the material, and the material cannot be used on the new order, Seller will invoice the Buyer fair charges for expenses on the order up to the time the change order was received in writing from Buyer.
- 10.AMENDMENT AND MODIFICATION. These Terms may only be amended or modified in a writing that is signed by an authorized representative of each party.
- 11.QUANTITY. Minimum ordering quantity is dependent upon stock position, gauge ordered and many other variables and is therefore only available upon application. If Seller delivers to Buyer a quantity of Goods within the Applicable Over and Under Shipment Amounts (as defined below), Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods at the price set forth in the Sales Confirmation with a pro rata adjustment. “Applicable Over and Under Shipment Amounts” means the over/under amount set forth below for each specified Good:
1 lb. to 200 lbs. Yield of Coil
201 lbs. to 500 lbs. +/- 30%
501 lbs. to 1,000 lbs. +/- 20%
1,001 lbs. and over +/- 10%
1 lb. to 299 lbs. Yield of Coil
300 lbs. to 1,999 lbs. +/- 20%
2,000 lbs. & over +/-10%
- 12.SHIPPING TERMS. Delivery shall be made EX WORKS Seller’s facility unless otherwise specified in the Sales Confirmation or a writing signed by Buyer.
- 13.TITLE AND RISK OF LOSS. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the Price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted herein constitutes a purchase money security interest under the Connecticut Uniform Commercial Code.
- 14.LIMITED WARRANTY.
- (a)Seller warrants to Buyer, for a period of 12 months from the date of shipment of the Goods (“Warranty Period”), that such Goods will materially conform to the Buyer’s specifications and Seller’s certification in effect as of the date of shipment. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, Seller shall not be responsible for the results of any technical advice that may be rendered by Seller or any other party in connection with the design, installation or use of the Goods.
- (b)EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 14(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- (c)Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 14(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- (d)The Seller shall not be liable for a breach of the warranty set forth in Section 14(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within thirty (30) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
- (e)The Seller shall not be liable for a breach of the warranty set forth in Section 14(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
- (f)Subject to Section 14(d) and Section 14(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
- (g)THE REMEDIES SET FORTH IN SECTION 14(f) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 14(a).
- 15.LIMITATION OF LIABILITY.
- (a)IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- (b)IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS IN RESPECT OF WHICH DAMAGES ARE CLAIMED.
- 16.INSURANCE. Upon Seller’s request, during the term of this Agreement, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000, with financially sound and reputable insurers. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms. If so requested, the certificate of insurance shall name Seller as an additional insured and Buyer shall provide Seller with thirty (30) days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, upon Seller’s request, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.
- 17.COMPLIANCE WITH LAW. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
- 18.NUCLEAR APPLICATION EXCLUSION. Buyer expressly acknowledges and agrees that Buyer will not use, cause to be used or make available for use the Goods in any nuclear application including, without limitation, use in connection with any nuclear reactor, nuclear power generating system or any nuclear waste (or spent fuel) disposal project, unless prior written notice of the specific proposed or intended nuclear application has been given to Seller prior Seller’s issuance of the Sales Confirmation and Seller has acknowledged and agreed to such application in writing. Unless such notice has been given to and accepted by Seller, any subsequent nuclear application of the Goods is wholly unauthorized and shall be deemed to be unknown to, unforeseeable to and unintended by Seller. FURTHERMORE, UNLESS SUCH NOTICE HAS BEEN GIVEN TO AND ACCEPTED BY SELLER, BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT, AS TO NUCLEAR APPLICATIONS, THE GOODS FURNISHED BY SELLER ARE FURNISHED WITHOUT ANY WARRANTIES WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OF A PARTICULAR PURPOSE. IT IS FURTHER SPECIFICALLY ACKNOWLEDGED AND AGREED THAT WITH RESPECT TO ANY NUCLEAR APPLICATION OF THE GOODS FOR WHICH SUCH NOTICE HAS NOT BEEN GIVEN TO AND ACCEPTED BY SELLER, BUYER WAIVES ALL REMEDIES AND ANY CLAIM, WHETHER IN CONTRACT OR IN TORT, INCLUDING ANY STATUTORY OR COMMON LAW CLAIM FOR CONTRIBUTION OR INDEMNIFICATION, AGAINST SELLER, AND WILL INDEMNIFY AND HOLD SELLER HARMLESS FROM ANY AND ALL CLAIMS AND/OR LOSSES ARISING OUT OF OR RELATING, IN WHOLE OR IN PART, TO ANY NUCLEAR APPLICATION OF THE GOODS.
- 19.TERMINATION. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- 20.WAIVER. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- 21.CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. Buyer acknowledges and agrees that: (i) any and all of Seller’s intellectual property rights are the sole and exclusive property of Seller or its licensors, (ii) Buyer does not acquire any ownership interest in any of Seller’s intellectual property rights under this Agreement, and (iii) if Buyer acquires any intellectual property rights in or relating to any Good purchased under this Agreement (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law or otherwise, these rights are deemed and are hereby irrevocably assigned to Seller and its licensors, as the case may be, without further action by any party.
- 22.FORCE MAJEURE. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of sixty (60) days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
- 23.ASSIGNMENT. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
- 24.RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- 25.NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
- 26.GOVERNING LAW. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Connecticut without giving effect to any choice or conflict of law provision or rule (whether of the State of Connecticut or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Connecticut.
- 27.SUBMISSION TO JURISDICTION. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Connecticut, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
- 28.NOTICES. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
- 29.SEVERABILITY. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- 30.SURVIVAL. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.
- 31.ENVIRONMENTAL REGULATIONS. All Ulbrich USA facilities comply with US EPA, EU Reach, and EU RoHS regulations. Customers must notify Ulbrich on the face of accepted purchase orders of any additional environmental regulation requirements.
Last updated March 10, 2020
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