NORANDAL USA, INC.
TERMS AND CONDITIONS OF SALE
- AGREEMENT: These Terms and Conditions of Sale shall be the sole terms and conditions governing the sale of goods by Norandal USA, Inc. ("Seller") and shall supersede all prior oral or written agreements that conflict with these Terms and Conditions. These Terms and Conditions are incorporated into each and every order by Buyer that establishes essential commercial terms not in conflict with these Terms and Conditions of Sale (the “Order”). The Order, Seller’s Acknowledgement, if given in written or electronic form, and these Terms and Conditions constitute the Agreement between Buyer and Seller. In the event of conflicting provisions in an Order, these Terms and Conditions and Seller’s Acknowledgement shall control and Seller will go forward with a sale under the reasonable assumption that the Agreement is binding on the parties. Each sale of goods by Seller to Buyer is expressly conditioned on Buyer's acceptance of the Agreement and a sale will not go forward unless Buyer agrees to all of these Terms and Conditions. Seller hereby rejects any terms or provisions in Buyer's order or other documents that add to, contradict, or alter the terms of the Agreement. Buyer agrees that no oral or written representation, guaranty or warranty made by Seller, its employees, agents or representatives, other than as expressly set out in the Agreement, shall bind Seller.
- PRICE: The price for goods and other items covered by the Agreement shall be invoiced at the prices and charges set forth in the Agreement; if no price is set forth, the price shall be as determined by Seller in good faith at the time of shipment. The price shall be in U.S. dollars unless otherwise agreed to in writing.
- SHIPMENT: Shipping date is Seller's best estimate and will not bind Seller to ship or make deliveries on the date set forth in the Order. Unless otherwise stated herein, transportation is FOB Origin, Freight Prepaid. Title, risk of loss or damage, and other incidents of ownership, subject to Seller's security interest, shall pass to Buyer upon due tender of goods, for delivery, at Seller's facility.
- DELIVERY: When Buyer fails to give timely delivery instructions to enable Seller to make deliveries in accordance with a shipping date provided by the terms of the Order, Seller shall have the option of: (1) shipping the materials specified to one of Buyer's historically recognized designations; (2) billing Buyer for quantities due and holding same at Seller's facility for Buyer's disposition; or (3) canceling the quantities involved and billing Buyer for reasonable cancellation charges as established by Seller.
- PAYMENT TERMS: Unless otherwise provided herein, terms of payment shall be net thirty (30) days from date of invoice. A reasonable service charge may be enforced on overdue amounts and interest, at the lesser of 18% per annum or the highest rate permitted by applicable law, will accrue on past due accounts until paid. Should Seller be forced to hire an attorney to assist it in collecting its account from Buyer, whether or not said collection efforts include litigation, Buyer agrees to pay to Seller all costs of collection, including, but not limited to reasonable attorneys' fees, expenses and court costs. Seller shall have a purchase money security interest in goods furnished and proceeds thereof until payment is made for said goods and Buyer authorizes Seller to file financing statements indicating such security interest. Notwithstanding any language to the contrary on Buyer's check, draft or other order which is negotiated by Seller, Buyer's account shall not be deemed paid in full until finally paid.
- CREDIT: Seller reserves the right to alter or suspend credit and/or change credit terms at any time if Seller believes, in its sole discretion, that Buyer’s financial condition warrants the suspension and/or change. If, at any time, (1) Buyer fails to pay to Seller any amount, in full when due, or otherwise fails to perform any other obligation owed to Seller or (2) Buyer, in Seller's opinion, is financially impaired or (3) Buyer makes an assignment for the benefit of creditors or (4) a levy, execution or attachment is made of any material portion of Buyer's property or (5) a receiver is appointed for Buyer or (6) Buyer and/or any material part of Buyer's property becomes subject to any proceeding or arrangement for the relief of debtors, including, without limitation, any voluntary or involuntary case under any provision Title 11 of the United States Code (the Bankruptcy Act), then, Seller shall have, in its sole discretion but subject to any provisions of the Bankruptcy Act and in addition to any other remedies available to Seller, (1) the right to declare all payments and outstanding balances immediately due and owing and to cancel this Agreement with Buyer, including work in process, or (2) to perform this Agreement with Buyer, including work in process, but refuse to make any shipments except upon the receipt of cash payment prior to shipment.
- FORCE MAJEURE: Seller shall not be liable for failure to ship, or delays in shipment, occasioned by or due to Acts of God, fire, earthquake, hurricane, flood, inability to obtain materials or shipping space, breakdowns, delays or unavailability of transportation or suppliers, including energy suppliers, labor demands, whether or not labor demands can be met by Seller, acts of war or terrorism, acts, regulations or requests of any government or government agency, or any other cause beyond Seller's control. In the event of Seller's inability to fill Buyer's order, Seller may make partial shipment to Buyer, on such basis as Seller in its sole discretion may decide, without liability to Buyer for any failure to fully perform its contractual obligations. Seller shall have no obligation to purchase substitute goods or make other substitute arrangements in order to complete delivery to Buyer or to ship substitute goods from any other facility operated by Seller.
- QUANTITY TOLERANCE: Quantity tolerance shall be in accordance with Seller’s normal manufacturing processes.
- WARRANTY: Seller warrants good title to the goods sold to Buyer and that the goods shall be free from commercially unacceptable defects in material and workmanship and will conform, within the limits of standard commercial tolerances, to Buyer's specifications, if any. SELLER MAKES NO OTHER WARRANTY OR REPRESENTATION WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH OTHER WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED. IN NO EVENT SHALL SELLER'S LIABILITY EXTEND BEYOND REPLACEMENT OR REPAIR OF GOODS OR GIVING BUYER CREDIT FOR THE PURCHASE PRICE AND SELLER SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES INCLUDING LOSS, DAMAGES OR EXPENSES DIRECTLY OR INDIRECTLY ARISING FROM THE USE OF THE GOODS, INCLUDING, WITHOUT LIMITATION, WAREHOUSING, LABOR, HANDLING AND SERVICE CHARGES, AND DIE, EQUIPMENT AND MACHINE BREAKAGE. BUYER ACKNOWLEDGES AND AGREES THAT BUYER TAKES SOLE RESPONSIBILITY FOR THE SELECTION OF AND SPECIFICATIONS FOR THE GOODS, THEIR FITNESS FOR ANY PURPOSES INTENDED FOR THE USE OF THE GOODS BY BUYER OR ANY PERSON OR ENTITY WITH WHOM BUYER DIRECTLY OR INDIRECTLY DEALS AND FOR COMPLIANCE WITH ALL HEALTH, SAFETY AND/OR ENVIRONMENTAL LAWS, RULES, REGULATIONS AND STANDARDS OF PRACTICE THAT MAY BE APPLICABLE TO THE GOODS OR THEIR USE, INCLUDING, WITHOUT LIMITATION, THE USE OF THE GOODS AS CONTAINERS OR PACKAGING FOR FOOD OR BEVERAGES. All claims for replacement of alleged defective goods shall be deemed waived unless made in writing and delivered to Seller within 10 calendar days after receipt of goods by Buyer; or when produced against Buyer's specific release or "ready" dates, within 30 days of such specific release or "ready" dates. Buyer shall afford Seller prompt and reasonable opportunity to inspect all goods as to which any claim is made. Upon receipt of shipping instructions from Seller, Buyer shall return to Seller F.O.B. Seller's destination, all goods allegedly not conforming to specifications, or otherwise allegedly defective. Goods returned must be returned in the same condition as when received by Buyer. Goods found by Seller to be defective or not to conform to specifications shall, upon return, be replaced or repaired by Seller without any additional charge, or, at Seller's option, Seller may credit the purchase price of such goods to the Buyer by issuing Buyer a credit memo or good funds or by setting off the purchase price of such goods against monies owed to Seller by Buyer. Seller will also credit Buyer for reasonable return transportation charges on returned nonconforming goods. Returned goods which are found by Seller to be free from defect and to conform to specifications shall be treated pursuant to Section 4 herein.
- INTELLECTUAL PROPERTY: Seller warrants that goods sold hereunder shall not violate any third party intellectual property rights and further agrees to hold Buyer harmless from any and all damages, including reasonable attorneys’ fees, arising from claims and demands for actual or alleged infringement of any third party intellectual property rights. If, however, any goods shall be manufactured or sold by Seller to meet Buyer's specifications or requirements and are not a part of Seller's standard line offered by it to the trade generally in the usual course of Seller's business, Buyer agrees to hold Seller harmless from any and all damages, including reasonable attorneys' fees, arising from claims and demands for actual or alleged infringement of any intellectual property rights, and to defend at Buyer's expense any suits or actions at law or in equity which may be brought against Seller for any actual or alleged infringement because of the manufacture or sale of any such goods. The sale of goods shall not grant Buyer any right or license of any kind under any intellectual property right owned or controlled by Seller or under which Seller is licensed.
- INDEMNITY: To the fullest extent permitted by law, Buyer shall, at Buyer's sole expense, indemnify and hold Seller, its officers, directors, agents and employees harmless from any and all loss, liability, claims, suits and costs, including reasonable attorneys' fees and expenses, based in whole or in part on the fitness of the goods for a particular purpose or noncompliance with any law, rule or regulation and/or product liability pertaining to the goods and/or any use to which the goods are put after shipment of the goods by Seller to Buyer.
- TAXES: Except for income taxes normally paid by Seller, Buyer shall pay or reimburse Seller for any tax which now or hereafter may be imposed by any taxing authority in respect to the sale, manufacture, delivery, use and/or other handling of goods sold by Seller to Buyer.
- INSPECTION CHARGES: Where Buyer requires tests or inspections not regularly provided by Seller, Seller may charge Buyer for the actual cost for such tests or inspections.
- CANCELLATION: Buyer may cancel an order only upon Seller's acceptance of such cancellation in writing. Seller will assess liquidated damages in an amount equal to 50% of the value of unmanufactured goods for a permitted cancellation made less than 90 days prior to Seller's scheduled shipment date. Seller shall have the right to continue the processing of the goods in manufacture and treat the goods pursuant to Section 4 herein. Special orders and/or non-cancelable orders may not be canceled. Cancellation charges shall be payable in accordance with the terms provided herein.
- ASSIGNMENT: Buyer may neither assign any of its rights nor delegate any of its duties under the Agreement without the prior written consent of Seller, which may be given or withheld in the sole discretion of Seller. The Agreement may be performed, and all rights hereunder against Buyer may be enforced, by Seller or by any subsidiary or affiliate of Seller.
- WAIVERS: No change or waiver of any of these Terms and Conditions shall be valid unless in writing and signed by the party against whom such claimed change or waiver is sought to be enforced. No waiver by Seller of any term, condition or remedy shall be deemed a waiver of any other term, condition or remedy. Seller's failure to object to any provision contained in any communication from Buyer shall not be deemed an acceptance thereof or a waiver of any of the terms, condition or remedy.
- DISPUTE RESOLUTION: All disputes arising out of or related to the performance of this Agreement, not resolved by Seller and Buyer shall initially be submitted to a mediator selected by the parties hereto or, if the parties cannot agree on a mediator, the mediator shall be chosen by the American Arbitration Association. Any disputes not resolved in mediation shall be resolved by an arbitrator or arbitrators agreed on by the parties hereto and in accordance with the Commercial Rules of the American Arbitration Association. If the parties are unable to agree on an arbitrator or arbitrators, the dispute shall be resolved by an arbitrator or arbitrators appointed by the American Arbitration Association in accordance with the Commercial Rules. All mediation and arbitration shall occur in Nashville, Tennessee, unless otherwise agreed on by Seller and Buyer.
- GOVERNING LAW: This Purchase Order shall be deemed to be entered into under, and shall be governed by the substantive laws of the State of Tennessee, disregarding its principles governing conflict of laws which might otherwise require the application of the laws of another jurisdiction. The parties expressly agree to exclude the United Nations Convention on Contracts for the International Sale of goods, 1980, and any successor provisions or legislation.