GENERAL TERMS AND CONDITIONS OF SALE

1.   These terms and conditions of sale (these “Terms”) are the terms which govern the sale of material (“Material”) by the seller named in the purchase order/invoice to which this relates (“Seller”) to the buyer named in the purchase order/invoice to which this relates (“Buyer”).  The accompanying purchase order/invoice (the “Contract”) and these Terms (together with the Contract, 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 has submitted its purchase order or such terms) and any terms of a Letter of Credit, and Seller’s acceptance of the Contract is expressly conditional on Buyer’s assent to the Terms (including the additional or different terms contained herein as compared to Buyer’s general terms and conditions of purchase). If the Terms are not acceptable, Buyer should notify Seller within five (5) business days of receipt. For the avoidance of doubt, 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.  Any reference to the defined term “Material” herein refers to the material described on the Contract to which these Terms relate.

    

1.  SELLER WARRANTS THE MATERIAL COVERED BY THE CONTRACT TO BE MERCHANTABLE.  EXCEPT FOR THE WARRANTY SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE MATERIAL, INCLUDING ANY (A) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, APPLICATION OR USE (B) WARRANTY OF TITLE, OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. 

    

   For the avoidance of doubt, the giving of or failure to give any advice or recommendation by Seller and/or any other oral or written communications of Seller shall not constitute any warranty by or impose any liability upon Seller.  BUYER AFFIRMS THAT BUYER HAS NOT RELIED ON SELLER’S SKILL AND JUDGMENT TO SELECT OR FURNISH MATERIAL SUITABLE FOR ANY PARTICULAR PURPOSE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE SET FORTH IN THE FIRST SENTENCE OF THIS SECTION 2.

    

1.   DELIVERY:  The Material will be delivered within a reasonable time after the receipt of Buyer’s executed Contract, subject to availability of finished Material.  Unless otherwise agreed in writing by the parties, Seller shall deliver the Material to the location buyer has specified (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Material. Seller shall not be liable for any delays, loss or damage in transit.  Buyer shall take delivery of the Material within 3 days of delivery to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Material at the Delivery Point.

    

   If for any reason Buyer fails to accept or affirmatively reject (in conformance with this Agreement) delivery of any of the Material on the date specified immediately above, or if Seller is unable to deliver the Material at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations or any acceptable location for delivery: (i) the Material shall be deemed to have been delivered; and (ii) Seller, at its option, may store the Material until Buyer picks it up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

    

1.  Unless otherwise specified in writing by the parties, Seller shall have the right to make partial shipments of the Material to Buyer.  Each partial shipment shall be deemed a separate sale under the Contract and payment shall become due for the Material contained in such shipment whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.

    

   5. SHIPPING TERMS.  Seller shall make delivery in accordance with Seller’s standard methods for packaging and shipping, unless detailed to the contrary in the Contract.

    

   6. TITLE AND RISK OF LOSS.  Unless expressly set forth to the contrary in the Contract, title and risk of loss passes to Buyer upon delivery of the Material to the applicable courier F.O.B. place of shipment.  As collateral security for the payment of the purchase price of the Material, 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 Material, 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, until such time as Seller is paid in-full with respect to the purchase price.

    

1.  In the event that any new or increased U.S. Federal, State or Local taxes, Raw Material Surcharges or Freight Surcharges, however denominated, are imposed upon the contracted Material after the date of the Contract, such new or increased taxes shall be for the account of and charged to Buyer. This applies to contracts for both Domestic and Imported materials.

    

1.  If the Contract provides that Seller shall pay insurance and transportation costs, they shall be at the applicable rates in effect at the date of the Contract.  If for any reason the cost insurance or transportation increases prior to shipment date, such increase shall be for the account of and charged to Buyer.

    

1.  If for any reason beyond the control of the Seller or of the Seller’s supplier, shipment is not made within the time specified:

    

   (a)       Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, and

    

   (b)       Unless otherwise agreed, the time for shipment shall be extended for a period of ninety (90) days, and Buyer, if payment is made by Letter of Credit, shall extend such Letter of Credit for ninety (90) days.  If shipment is not made within such extended ninety (90) day period, the Contract shall, absent written agreement of the parties to the contrary, be deemed to be cancelled by mutual consent and without liability to either party; provided, that if the applicable Material is later shipped by Seller and accepted by Buyer the terms of this Agreement shall apply as if the foregoing cancellation never occurred.

    

1. If after the Material has been shipped, its arrival at port of destination is delayed or prevented because, without fault of Seller, the vessel is delayed in arriving, berthing or unloading, or unloads at a different port, Seller shall not be liable therefor and the time shall be extended until the Material is unloaded and the port of destination within the terms of the Contract shall be the place at which the Material is unloaded by the vessel.  Seller shall advise Buyer of any such delay or deviation within a reasonable time and cooperate with Buyer, at Buyer’s expense, to ship the Material to the point of destination requested by Buyer.

    

1. 11.  CLAIMS: 

   (a)       Shortages – Subject to Section 4 of these Terms, all claims for shortages in quantity delivered must be made in writing delivered to Seller within 3 days of receipt and must be supported by documentary evidence in the form of exceptions taken on the delivery receipt (however denominated) furnished by Buyer to the delivering carrier.  Failure to take such exceptions at time of delivery shall constitute an absolute bar to any claim.  Any liability of Seller for shortages shall be limited to supplementing the delivered Material with new Material within a reasonable time or adjusting the invoice respecting such Material to reflect the actual quantity delivered.

    

   (b)       Damaged and Defective Material - All claims of damage to Material of any kind against Seller which might have occurred prior to delivery to Delivery Point are barred unless reported in writing by Buyer, with full particulars, promptly after the damage was or reasonably should have been discovered, with full facilities of Buyer and the subject Material offered Seller, its insurer (if applicable) and its assigns for inspection and investigation.  All such claims must be supported by documentary evidence in the form of exceptions taken on the delivery receipt (however denominated) furnished by the Buyer to the delivering carrier.  Failure to take such exceptions at time of delivery shall constitute an absolute bar to any claim.  In case of a dispute as to whether the Material meets Contract specifications, Seller or Buyer may designate a mutually acceptable independent testing company and/or surveyor to make an examination and in such case said testing company’s and/or surveyor’s findings shall be conclusive and binding on both parties (the expense of which examination shall be borne by the Seller with respect to each item found not to confirm to specifications and by the Buyer with respect to each item found to conform to specification).

    

   (c)       Limitations on Liability - Seller shall not be liable for any special, indirect, consequential or punitive damages in connection with the carrying out of or breach of the Agreement, including any breach of warranty, whether express or implied, including, without limitation, any expense of Buyer for the use, handling, disposition or sale of defective Material.  Seller’s sole liability and Buyer’s exclusive remedy for breach of any warranty offered in the Agreement is expressly limited, at Seller’s option, to one of (i) repair of the defective Material, (ii) replacement of the defective Material at the original FOB point, (iii) repayment of the applicable purchase price (or component thereof) or (iv) establishment of a future allowance for Buyer with Seller in the amount of the applicable purchase price (or component thereof).  Any claim for breach of warranty offered in this Agreement shall be deemed waived unless Buyer shall give Seller written notice of such a claim promptly after delivery of the Material and in no event later than twenty (20) days after delivery.  Buyer shall give Seller reasonable opportunity to investigate such claim and inspect the applicable Material.  Replacement of defective Material, repayment of the applicable purchase price (or component thereof) or establishment of an allowance with respect thereto shall be made only upon return of the applicable Material at the cost of Buyer (or such other disposition as designated by Seller) after inspection by Seller and Buyer’s compliance with reasonable written shipping instructions from Seller.

    

   IN THE EVENT THAT A TIMELY AND BONA FIDE CLAIM IS MADE WITH RESPECT TO DEFECTIVE OR DAMAGED MATERIAL, SELLER SHALL PROVIDE REMEDY TO BUYER IN THE FORM OF, AT SELLER’S OPTION, one of (i) repair of the defective/DAMAGED Material, (ii) replacement of the defective/DAMAGED Material at the original FOB point, (iii) repayment of the applicable purchase price (or component thereof) or (iv) establishment of a future allowance for Buyer with Seller in the amount of the applicable purchase price (or component thereof).  EXCEPT AS SET FORTH IN THE PRIOR SENTENCE, SELLER SHALL NOT BE OTHERWISE LIABLE FOR SUCH DEFECTIVE OR DAMAGED MATERIAL.  Buyer’s obligation to accept and make payment on time for the balance of the Material delivered or to be delivered under the Contract shall not be affected by any defective or damaged nature of the applicable Material.

    

   All claims must be made by registered or certified mail, and must state with particularity the defect or damage complained of.  Subject to any shorter duration for notice of claim set forth herein, in no event may any claim be made against Seller with respect to Material more than twenty (20) days after the Material is delivered to the Delivery Point.

    

1.  In the event that Buyer fails to perform its obligations, Seller, at its option, may (a) cancel the Contract and recover from Buyer its damages, including its expenses, mill cancellation fees and the difference between the Contract price and the lesser of the Seller’s cost or the market price at the Delivery Point, or (b) dispose of the Material publicly or privately for Buyer’s account and apply the net proceeds, after deducting expenses of disposition, against the Contract price and recover from Buyer any damages of Seller, including its expenses, mill cancellation fees and the difference between the Contract price and such net proceeds.  In case of any deficiency, the Buyer shall remain liable therefore. Seller’s expenses in either case shall include reasonable attorneys’ fees and other costs of enforcing its rights.

    

1.  Except as otherwise provided herein, in the event of failure of the Seller to perform its obligations, Buyer shall serve written notice upon Seller within 10 days of such failure.  If Seller fails to perform within 30 days after receipt of such notice, Buyer, as its exclusive remedy, may cancel the Contract and recover from Seller the positive difference (if any) between the market price at point of shipment less the purchase price contemplated by the Contract (computed on an f.o.b. port of shipment basis).

    

   14. PRICE:  Buyer shall purchase the Material from Seller at the price (the “Price”) set forth in on the Contract. If the list price of Seller should be increased by Seller before delivery of the Material to a carrier for shipment to Buyer, then these Terms may, at Seller’s option, be construed as if the increased price were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased price.  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.

    

1. Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller’s invoice. Buyer shall make all payments hereunder by wire transfer/check/agreed payment method and in US dollars.  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.

    

1. If payment is not made on time, Seller, in addition to other legal rights, shall be entitled to interest at a rate equal to the lesser of (a) 18% annually, compounded at 1.5% per month on the unpaid balance or (b) the amount of legally allowable interest on the unpaid balance.  Buyer shall also reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.  

    

1. Buyer hereby represents that it is solvent and Buyer’s signing of any delivery receipt (however denominated) furnished by Buyer to the delivering carrier shall constitute a further representation of solvency at the time of signing such receipt.  If at any time there is a change in the financial condition or structure of Buyer, arising from a change in business or market conditions or otherwise, or arising from a merger, reorganization or other change in business form, or if Buyer becomes insolvent, makes an assignment for the benefit of creditors, or a petition in bankruptcy with respect to Buyer is filed, or if any lien arising from judicial process or otherwise is placed upon any material asset of Buyer, then Seller shall have the right to cancel the Contract without liability on its part or to change the credit terms of the Contract including, but not limited to, requiring the payment of cash in advance of delivery.

    

   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 Material if (a) Buyer fails to pay any amounts when due hereunder or (b) Buyer fails to pay any other amounts owing to Seller pursuant to separate purchase order, invoice, contract or agreement.  Said action on the part of Seller shall not release Buyer from its obligation to accept and pay for such remaining portion of Material if and when shipped by Seller.

    

1. Any controversy arising under or in connection with the Contract shall be submitted to arbitration in the State of New York in accordance with the rules then obtaining of the American Arbitration Association. Judgment on any award may be entered in any court having jurisdiction.  The parties hereto submit to the jurisdiction of the Federal and State courts of the State of New York and notice of process in connection with arbitral or judicial proceedings may be served upon the parties by registered or certified mail, with the same effect as if personally served.

    

1.  The Contract is to be governed by the law of the State of New York, excluding the Convention on Contracts for the International Sale of Goods.

    

1.  No claim or cause of action of any kind arising under the Contract may be asserted in arbitration or in any other forum more than one (1) year after the date on which such cause of action arises.

    

1.  This Agreement may only be amended or modified in a writing which specifically states that it amends these Terms or the Contract and is signed by an authorized representative of each party.

    

1. Buyer and Seller agree that no representations have been made or relied upon, except as specifically stated in the Contract.

    

1. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

    

1. Buyer shall comply with all applicable laws, regulations and ordinances and 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 Material under this Agreement or any resale of the Material by Buyer. Buyer assumes all responsibility for shipments of Material requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Material.

    

1.   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.

    

1.   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.