STANDARD TERMS AND CONDITIONS OF SALES
INTRODUCTION: These Standard Terms and Conditions of Sales shall govern all sales transactions by Eagle Alloys Corporation (herein sometimes referred to as “Seller”) to each and every customer of Seller, said customer being referred to herein as “Buyer”. No statement contradicting these standard terms and conditions in any document issued by Buyer shall be deemed to change or contravene any of the provisions of this document without the express written approval of Seller which express written approval must make reference to the specific provision or provisions that is or are changed.
ROLE OF EAGLE ALLOYS: Eagle Alloys is a distributor of products and materials to customers both inside and outside the United States of America (“USA”) in accordance with specifications and requirements of its customers. Eagle Alloys receives orders for specific materials and products from its customers and locates the availability of such materials and products from its suppliers both within and outside the USA. Centralizing and concentrating the acquisition and distribution of materials and products at its principal facility in Talbott, Tennessee, is critical to Eagle Alloys’ ability to properly provide for, and to service, its customers. Therefore, these Standard Terms and Conditions of Sales are essential conditions of all sales of materials and products by Eagle Alloys and must take precedence over any conflicting terms and conditions, whether standard or otherwise, set forth in any document issued by a customer of Eagle Alloys except as otherwise provided in this document.
INSPECTION FOR DEFECTIVE MATERIALS: Buyer agrees to inspect all materials and products purchased from Seller no later than ten (10) days subsequent to receipt of said materials or product from the carrier. Buyer shall conduct said inspection prior to any fabrication or alteration of the material or product received from the carrier. In the event that Buyer shall discover that all or any part of the materials received and tested by Buyer shall be found to be defective or nonconforming, Buyer shall immediately give written notice thereof to Seller. Buyer’s sole and exclusive remedy shall be as set forth herein. Buyer hereby expressly waives and relinquishes any claim against Seller arising out of Seller’s delivery of defective or non-conforming materials in the event Buyer has failed to conduct an inspection prior to fabrication or alteration or to reasonably notify Seller of the results of applicable tests. BUYER HEREBY EXPRESSLY WARRANTS THAT THE ABOVE INSPECTION SHALL BE MADE NO LATER THAN TEN (10) DAYS SUBSEQUENT TO THE RECEIPT OF MATERIALS FROM SELLER OR FROM THE CARRIER, WHICHEVER IS LATER.
DELIVERY AND DELAYS: Delivery to carrier at point of shipment shall constitute delivery to Buyer and Buyer shall assume all risk for subsequent loss or damage. That in some instances a different “F.O.B.” point may be shown in the invoice or that all or part of freight charges may be prepaid, assumed, or allowed by Seller is for Buyer’s convenience only and shall not shift the risk of loss or damage to Seller as set forth in the preceding sentence. Seller shall not be responsible for any failure or delay in delivery due to any fires, flood, labor troubles whether or not due to fault of Seller, breakdown, delay of carriers, total or partial failure for any reason of unusual sources of transportation, requirements or requests of any government or subdivision thereof, or any similar or dissimilar cause or force majeure beyond Seller’s control.
WARRANTY: Seller warrants that the materials and products sold to Buyer shall be free from defects in material and workmanship and shall conform to specifications within tolerances set forth in Seller’s published standards in effect as of the date of Acknowledgement (if said Acknowledgement is issued by Seller) or, if no Acknowledgement, from the date of submission of the purchase order. THIS EXPRESS WARRANTY IS IN LIEU OF, AND EXCLUDES, ALL OTHER WARRANTIES, GUARANTEES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE. In the event of a breach of warranty, Buyer shall immediately notify Seller, in writing, of such breach. All claims of breach of warranty shall be asserted by Buyer promptly subsequent to delivery of the materials or product purchased, and in no event shall Buyer’s claim be more than ten (10) days subsequent to Buyer’s receipt of the respective materials or products from Seller or from the carrier, whichever is later. ANY CLAIM NOT MADE IN A TIMELY FASHION SHALL BE DEEMED WAIVED BY BUYER. Seller shall have the right to inspect the alleged defective product and material and at Seller’s option: (a) refund the purchase price applicable to such material or product, or (b) direct Buyer to return the defective materials or product for replacement. However, Seller shall not be obligated for such refund or replacement in the event returned materials or product prove to be free from defects and meet specifications. SELLER’S LIABILITY SHALL BE SOLELY LIMITED TO THE REPLACEMENT, REPAIR OR TO THE REFUNDING OF THE PURCHASE PRICE APPLICABLE TO THE PRODUCT OR MATERIAL BEING DEFECTIVE OR NOT MEETING SPECIFICATIONS. THESE REMEDIES SHALL BE THE EXCLUSIVE REMEDIES AVAILABLE TO BUYER HEREUNDER. Failure of Buyer to properly install, use, and maintain the material or product purchased from Seller or abuse of the material or product shall be deemed a waiver of the benefit of all warranties hereunder. Seller and Buyer expressly waive all statutes of limitations and agree that any claim by Buyer with reference to the products acquired from Seller for any cause or reason shall be deemed waived by Buyer unless filed in a court of proper jurisdiction within one (1) year from the date of accrual of the cause of action with respect thereto.
CLAIMS: Any course of dealing between the parties to the contrary notwithstanding, at Seller’s election any claim for breach of warranty, failure or delay in delivery or otherwise shall be deemed waived by Buyer unless presented in writing to Seller within ten (10) days of receipt of the material in the case of claims of breach of warranty, or within ten (10) days from date required for delivery in case of other claims. No inspection or investigation of claims by Seller, even though occurring after the period above specified, shall be deemed a waiver of such provision unless Seller specifically agrees in writing. A contrary statement in Buyer’s terms and conditions shall not waive or override the provisions of the preceding sentence. NO PERSON OR PARTY NOT IN PRIVITY OF CONTRACT DIRECTLY WITH SELLER WITH REGARD TO THE PARTICULAR PRODUCT OR MATERIAL AT ISSUE SHALL BE ENTITLED TO THE BENEFIT OF ANY WARRANTY BY SELLER. NOTWITHSTANDING ANYTHING TO THE CONTRARY ELSEWHERE SET FORTH HEREIN, MONETARY DAMAGES CHARGEABLE TO SELLER WITH RESPECT TO ANY BREACH OR VIOLATION BY SELLER SHALL BE LIMITED TO BUYER’S COST OF THE MATERIALS OR PRODUCTS IN QUESTION. Seller shall not have any liability for incidental, consequential, special or punitive damages of any nature including, without limitation, damages for overhead and loss of business and profits.
TOLERANCE QUANTITY; UNAVAILABLE SUPPLIES: The total order and each delivery of material or products shall be subject to a tolerance of ten percent (10%), plus or minus quantity. In the event of inability of Seller for any cause beyond Seller’s control, to supply the total demands for any material or product specified by Buyer, Seller may allocate its available supply among any of all purchasers, including subsidiaries, affiliates and departments of Seller, on such basis as Seller, in its sole discretion, may decide upon, without liability for any resulting failure to perform Seller’s contract with Buyer.
PRICES, PAYMENTS, AND CREDIT TERMS: Applicable prices are the Seller’s prices in effect at time of shipment, prior quotation or other acknowledgements notwithstanding. Changes in the market prices of raw materials may cause Seller’s prices to change. All shipments to be made shall be subject to the approval of Seller’s credit department. If, in the reasonable opinion of Seller, the financial responsibility of Buyer is unsatisfactory or becomes impaired, or if Buyer fails to make any payment in accordance with the terms of the contract, then, in any such event, Seller may defer or decline to make any shipments until after receipt of satisfactory security or cash payments in advance, or Seller may terminate the contract. Terms of payment shall be as set forth in the invoice. In the event Buyer is delinquent in the payment of any sum due to Seller, then, if such sum is not paid within fourteen (14) calendar days of demand, Seller may place the account in the hands of a collection agency or lawyer, or both, in which case Buyer shall be responsible for all costs of collection and litigation including reasonable attorney’s fees together with interest on any delinquent sum at the rate of ten percent (10%) per annum from the original due date.
TAXES & TOLLS: In addition to the price specified in the invoice, the amount of any present or future direct or transactional tax applicable to or imposed upon the sale, manufacture, delivery and/or other handling of material shall be paid by the Buyer. Federal and state income taxes of Seller are not chargeable to Buyer pursuant to this paragraph. Toll charges regarding transportation designated as estimated shall be paid by Buyer and may vary in accordance with actual costs.
CHANGES; CANCELLATION: Seller assumes no responsibility for any changes in the specifications outlined in the original order, unless such changes are confirmed in writing by Buyer and accepted in writing by Seller. Any price variation resulting from such changes shall become effective immediately upon the acceptance of such changes in specifications. Orders are subject to cancellation only upon Seller’s accepting such cancellation in writing, and the effective date of such cancellation shall be the date of such acceptance. The date of such acceptance notwithstanding, Seller shall have the right to continue the processing of the materials or articles affected to the point at which the processing can be halted with the least inconvenience to Seller under the circumstances. Payment of cancellation charges shall be made by Buyer upon receipt of statement of same. Cancellation charges shall not exceed the purchase price of the canceled portion of the order.
ADVICE TO SELLER: Seller shall have no liability for giving or failing to give advice or recommendations of any nature or character to Buyer. Seller shall have no obligation to grant to Buyer any license to use any of Seller’s patents, trademarks, or trade names and no such license shall be implied from the delivery of goods or materials by Seller.
PATENTS: Generally, Seller is not a manufacturer of products. Seller generally is a distributor of products. Except to the extent, if any that Seller holds (by written license or ownership) a patent upon a product sold to Buyer, Seller shall have no responsibility or liability with respect to any and all claims of infringement. To the extent that any product sold by Seller to Buyer incorporates any design or intellectual properties specified by Buyer, then Buyer shall be responsible for any and all infringement claims and costs arising therefrom. If any material shall be manufactured or sold (or both) by Seller to meet Buyer’s specifications or requirements, Buyer shall defend, protect and save harmless Seller against all suits at law or in equity and from damages, claims, losses, and demands for actual or alleged infringements of any United States of America or foreign patent and shall hold harmless, indemnify and defend Seller against any suits or actions which may be brought against Seller for any alleged infringement because of the manufacture or sale of any such material including, but not limited to, all costs of litigation and attorney’s fees and reasonable costs of investigation. Buyer represents and warrants that, in the event Buyer submits any drawings or specifications for a product to be manufactured for it, neither such drawings nor specifications nor the manufacture or fabrication of such product shall violate any patent, copyright, or other proprietary right of any other person.
INDEMNIFICATION: Buyer shall indemnify, defend, and hold Seller harmless from and against any and all claims, demands, actions, costs, liabilities, losses, and damages of any kind including reasonable attorney’s fees, reasonable costs of investigation, and costs of litigation incurred by or threatened to Seller in connection with any use or application of any product or material acquired from Seller by Buyer.
WAIVERS: No waiver by Seller of any breach of any provision shall constitute a waiver of any other breach or of such provision. Seller’s failure to object to provisions contained in any communication form Buyer’s shall not be deemed an acceptance of such provisions or as a waiver of the provisions hereof.
CONFLICTING TERMS & CONDITIONS: If there is any conflict between the purchase order and these stated Standard Terms and Conditions of Sales, the latter will prevail notwithstanding acceptance by Seller of the purchase order unless Seller’s acceptance expressly includes the conflicting provision by specific reference to the conflicting provision. A reference or statement of incorporation to the Buyer’s general or usual terms and conditions or the like by itself shall not be superior to these Standard Terms and Conditions of Sales of Seller.
GOVERNING LAW: The laws of the State of Tennessee shall be deemed to apply to the performance and interpretation of any contract between Buyer and Seller, including the Standard Terms and Conditions of Sales. Any actions at law or equity arising with respect to the dealings between Buyer and Seller shall be instituted and adjudicated in either a federal court in either Knoxville, Tennessee or Greeneville, Tennessee, or in a state court in Hamblen County, Tennessee. Buyer and Seller agree to the jurisdiction and venue of said courts. Buyer and Seller hereby appoint the Secretary of State of the State of Tennessee as agent for service of process and agree that either of them may file such document or documents on behalf of the other as is appropriate for effecting such designation of agent for purposes of any contract or action at law or equity between Buyer and Seller.