1. THE GENERAL TERMS AND CONDITIONS SET FORTH HEREIN SHALL BECOME BINDING ON BUYER AND SELLER UPON THE FIRST TO OCCUR OF CLAUSES (A), (B), (C), AND (D): (A) BUYER EXECUTES AND DELIVERS THIS CONTRACT, (B) BUYER ISSUES INSTRUCTIONS TO SELLER FOR DELIVERY OF ANY MATERIAL COVERED BY THE CONTRACT, (C) THE PASSAGE OF FIVE DAYS AFTER BUYER’S RECEIPT OF THIS MANUALLY SIGNED CONTRACT, EXCEPT TO THE EXTENT SELLER RECEIVES FROM BUYER AN EXPRESS WRITTEN OBJECTION TO ANY OF THESE GENERAL TERMS AND CONDITIONS WITHIN SUCH TIME PERIOD, OR (D) BUYER ACCEPTS DELIVERY OF ANY MATERIAL COVERED BY THIS CONTRACT. ANY GENERAL OR SPECIAL TERMS AND CONDITIONS OF PURCHASE PROPOSED BY BUYER SHALL NOT BECOME BINDING ON SELLER UNLESS EXPRESSLY ACCEPTED BY SELLER.
2. THIS CONTRACT SUPERSEDES ALL CORRESPONDENCE, ORDERS OR CONFIRMATIONS OF BUYER OR ANY AGENT THEREOF WITH RESPECT TO THE MATERIAL COVERED BY THIS CONTRACT. There are no additional terms or specifications not expressly contained in this contract. No modification or waiver of this contract or any right of Seller hereunder shall be binding upon Seller unless it is in writing and signed by an officer of Seller. No waiver by Seller of any default or breach shall be deemed a waiver of any other default or breach.
3. A default in any payment by Buyer after delivery or offer of delivery of any installment may at the option of the Seller be deemed a breach of the whole contract and Seller shall have all remedies available by law. The date of the bill of lading or receipt issued by the carrier or the date of the delivery order shall be conclusive proof of the date of such shipment or delivery to Buyer. Buyer shall take delivery promptly.
4. Seller’s duty to perform, and Buyer’s right to purchase including upon the credit terms provided herein, are at all times subject to the continuing approval of Buyer’s creditworthiness by Seller which approval may be granted or withheld in Seller’s sole and absolute discretion. Without limiting Seller’s rights and remedies, if Buyer fails to pay an amount promptly when due hereunder or under any other contract between the parties or to satisfy Seller in its sole and absolute discretion as to Buyer’s creditworthiness when required by Seller, Seller may upon written notice cancel this Agreement, impose different credit or payment terms, suspend, stop in transit, recall or reclaim deliveries or shipments, or impose different requirements for assurance of payment.
5. In the event that the Seller, in order to hedge its price risk, has contracted with a London Metals Exchange (‘LME’) broker to take on an LME position for the tonnage and time of delivery similar to the sale of the material to the Buyer and the Buyer either fails to take delivery of the material at the time specified (in whole or in part) such that the Seller has to adjust its LME contract to an earlier or later delivery date or the Buyer purports to cancel its purchase (in whole or in part) such that the Seller has to settle its LME contract in the absence of the physical sale to the Buyer offsetting the settlement of the Seller’s LME contract, the Seller may, without prejudice to its other rights, charge the Buyer with the cost the Seller incurs in adjusting or settling its LME contract(s).
6. The title to the material shall pass to Buyer upon Seller’s receipt of payment in full. The Uniform Commercial Code shall govern the passage of risk of loss.
7. Seller shall not be liable for any claim, except non-delivery, unless within ten (10) days after the arrival of the material involved in such claim at the contract destination, Buyer specifies in writing the grounds of such claim and the amount of damages. Failure to present any such claim within the time specified or to strictly comply with all requirements of this paragraph shall constitute an unconditional acceptance of the material by Buyer. No claim shall be made after the material is processed or changed in any way from its original condition as delivered.
8. Unless otherwise stated on the face hereof, the price and all charges and payments hereunder are payable in U.S. dollars. Payment shall be made in immediately available New York clearing house funds. Buyer shall pay interest on the unpaid balance of all bills after the due date thereof at the rate of 1 1/2% per month (but not more than the highest rate permitted by law), provided, however, that Seller’s acceptance of Buyer’s payment of interest on amounts past due shall not be deemed to be an agreement by Seller to extend credit to Buyer or a consent to Buyer’s late payment, and the failure of Buyer to make any payment when due shall be a default of the entire contract. Buyer shall not be entitled in any way to withhold, retain or exercise any right of set-off whatsoever in respect of the contract price or any part thereof.
9. Unless otherwise stated on the face hereof, neither Seller nor any agent or broker on its behalf has made any representation or warranties, express or implied, of any kind with respect to this contract or the material to be sold and purchased hereunder. THERE ARE NO WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE, EXPRESS OR IMPLIED, AND BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY BY SELLER IN MAKING THIS CONTRACT.
10. Seller shall not be liable for any default or delay caused by any contingency beyond its control, or the control of its supplier or manufacturer preventing or interfering with the Seller’s making delivery, including fires, riots, war, governmental pre-emption, restraints affecting shipping or credit, strikes, lockout, import or export prohibitions, breakdown of machinery or equipment, non-arrival or delay of steamer or carrier, floods, droughts, insolvency of supplier or manufacturer, short or reduced supply of fuel or raw materials or other contingency. In any such event Seller shall have the right, at its election and without any liability to Buyer, to (a) cancel or delay the performance of all or any portion of this contract, or (b) perform this contract as so cancelled or delayed to the extent determined by Seller in its sole and absolute discretion or (c) perform this contract within a reasonable time after the causes for non-performance or delay have terminated.
11. THIS AGREEMENT IS A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN ACCORDANCE THEREWITH. BUYER AGREES THAT ANY SUIT RELATING TO OR ARISING OUT OF THIS CONTRACT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN. BUYER HEREBY CONSENTS TO THE JURISDICTION OF SUCH COURTS.
12. Unless otherwise stated on the face hereof, all taxes, duties and/or imposts imposed or levied on, or applicable to, this contract or the products(s) covered hereby or any transaction or delivery hereunder or upon the purchase price payable, shall be for the account of, and payable by, the Buyer, whether such taxes, duties, or imposts shall be paid or payable by the Seller or otherwise.
13. SELLER’S LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR DELIVERY OF NON-CONFORMING MATERIAL IS EXPRESSLY LIMITED TO REPLACEMENT OF NON-CONFORMING MATERIAL OR PAYMENT OF DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY BUYER FOR THE NON-CONFORMING MATERIAL. SELLER SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF PROFIT OF ANY KIND.
14. Any action of any kind against Seller by Buyer must be commenced within one year from the date that any right, claim, demand or cause of action shall first accrue to Buyer.
15. Upon any default or breach of this contract by Buyer, Seller may cancel any or all contracts between Buyer and Seller and/or defer shipment or delivery of all or any part until such default or breach is cured and/or cancel any undelivered portions thereof and/or demand immediate payment of all outstanding bills by Buyer. If Seller elects to cancel, Seller shall have the right to recover damages against Buyer by reason of Buyer’s default or breach of this contract and it may sell all or any part of the undelivered material without notice to Buyer, except as may be required by law ( and in such event five (5) days notice shall be deemed reasonable notice in the circumstances) at public or private sale, holding Buyer liable for any damages or financial loss, including incidental expenses and attorney’s fees, resulting to Seller by reason of Buyer’s default or breach.
16. This contract may not be assigned or transferred by Buyer without the express written consent of Seller. Any transaction by which the controlling ownership interest in Buyer shall be sold, conveyed or assigned by the equity owners of Buyer shall be deemed to be an assignment prohibited by this Section.
17. All delivery terms used in this contract will be construed according to the “International Rules for the Interpretations of Communal Trade Terms” fixed by INCOTERMS 2000 issued by the International Chamber of Commerce, as may be amended or supplemented from time to time.
18. If this Contract specifies that it is a sale by Seller “on consignment” then: a) the material shall remain the sole and absolute property of the Seller until such time as the Seller has received in cash or cleared funds payment in full therefore; b) Buyer shall keep the material separate from any other material of the Buyer or of any third parties, properly stored (at no cost to the Seller), protected and, if requested by the Seller in writing, identified by signs as the Seller’s property; c) Buyer shall not be entitled to sell or otherwise dispose of the material except for its own consumption in its own production process; d) upon any default or breach by Buyer of this Contract or any other contract between Seller and Buyer, Seller shall be entitled to enter upon any premises where the material is stored and may repossess same; e) Buyer shall indemnify the Seller against any loss or damage to the consigned material until the consigned material is withdrawn by the Buyer for its own consumption whether or not caused by any risks against which the material may be insured; f) Buyer may not return the material for credit or any other consideration.