TERMS & CONDITIONS
CONTRACT BETWEEN PURCHASER AND SELLER
This Agreement (“Agreement”), consisting of this form, together with any quote issued by Mountain Ridge Metals, any Purchase Order, the Order Acknowledgment previously issued to you, the invoice, and any documents incorporated by reference, shall be a contract binding Mountain Ridge Metals (as “Seller”) and you (as “Buyer”). This Agreement shall be incorporated by reference and be controlling as to any Purchase Order you may have been issued respecting the product(s) to be purchased and sold hereunder and is not intended to evidence Seller’s acceptance of any such Purchase Order. Seller also hereby notifies you of its objection to any different or additional terms you may wish to propose for inclusion in this Agreement. Your acceptance of any product delivered hereunder shall be conclusive evidence of your acceptance of the terms and conditions of this Agreement as stated herein.
Buyer shall not be entitled to revoke, defer or change any Purchase Order in process of production unless approved by Seller in writing on terms that will compensate Seller for all costs and expenses associated therewith and will indemnify Seller against all losses related thereto.
CHANGE IN PRICE AND PRODUCT LINE
All materials will be invoiced at Seller’s price and charges in effect at the time of shipment. Seller reserves the right to make changes at any time in design, materials or specifications without decreasing performance, and to discontinue any product or products without notice.
PAYMENT TERMS
Unless otherwise agreed in writing by the parties, terms of payment for shipments are net cash within thirty (30) days from the date of invoice. Failure of Buyer to make any payment promptly when due shall be considered a default and without notice will entitle the Seller to treat the entire balance as immediately due and owing and to withhold further deliveries without liability until such default will be cured, or to cancel the unperformed part of this Agreement. Further, Seller will have the right to interest on all balances not paid when due at a rate of interest equal to 1.5% per month (or such lesser amount as may be the maximum permitted by applicable law). Seller reserves the right to use all remedies against a defaulting Buyer as allowed by the Uniform Commercial Code or any other remedy at law or equity that is applicable.
Seller reserves the right to require payment in advance or satisfactory security or guaranty that an invoice will be promptly paid when due if at any time Buyer’s financial responsibility becomes impaired or unsatisfactory to Seller.
If at any time prior to completion of performance under this Agreement, Seller shall have reasonable cause to doubt Buyer’s ability or intention to perform as required hereby, Seller may demand assurances of Buyer’s ability or intention to perform and may suspend its own performance pending receipt of such assurances. Buyer’s failure to provide assurances as requested may be deemed a breach of contract. Such reasonable assurances may include evidence of Buyer’s financial health, including evidence of its ability to pay amounts that may come due under this Agreement and the provision of third party sureties guaranteeing such payment. Prices shown and payments due under this Agreement are in United States dollars. Payment is due under the terms stated on the face hereof. Buyer agrees to pay all costs and expenses, including reasonable attorney’s fees, incurred by Seller in the collection of any past due sum payable by Buyer to Seller, or in the exercise of any remedy. Until full payment is made, Buyer grants Seller a security interest in all products and proceeds of any products as set forth in the Purchase Order.
TOLERANCES — EXTRUSIONS
The goods shipped hereunder shall be subject to standard quantity, specifications and dimension tolerances as contained in the Order Acknowledgment and/or as recognized by the Aluminum Association.
TAXES
Unless otherwise agreed upon by the parties and stated in writing by Seller, prices specified by Seller do not include sales, use, excise, value added or similar taxes. Buyer will be responsible for payment of the amount of any present or future sales, use, excise, value added or other similar tax applicable to the sale of goods hereunder. If taxes are later imposed on the sale of products, Buyer will reimburse Seller promptly on demand.
FORCE MAJEURE; DELAYS
Seller shall not be liable for any delay or non-delivery caused by circumstances beyond its reasonable control, including but not limited to declared or undeclared war, fire, flood, explosions, strikes, labor trouble or shortages, accident, breakdowns, mechanical failure of machinery or equipment, riot, act of governmental authority, acts of God, unavoidable casualties, priorities required or requested by federal or any state government or any subdivision or agency thereof or granted for the benefit, directly or indirectly of any of them, failure of the usual sources of supplies of raw materials, supplies and equipment, including electrical energy, delays in transportation or lack of transportation facilities, restrictions imposed by federal or state legislation, rules, regulations, orders or ordinances. In the event that any delivery is suspended or delayed by reason of the occurrence of one or more of the above causes, at Seller’s option, deliveries may be made after cessation of such causes and nothing herein shall excuse Buyer’s obligation to pay in full for any part of the order delivered before or after commencement of cessation of such cause(s).
WARRANTY
Seller warrants that the product(s) supplied by Seller shall be free from defects in workmanship and material and shall conform to the descriptions and specifications, if any, set forth or incorporated by reference in this Agreement. The foregoing warranty only applies to the quality of the goods at the time of delivery, and Seller makes no representation as to the durability or service life of the product. SELLER DISCLAIMS ANY OTHER WARRANTY, EXPRESS OR IMPLIED, WHETHER CREATED BY CONTRACT, BY STATUTE OR OTHERWISE BY OPERATION OF LAW, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
REMEDY
If any product supplied by Seller fails to conform to the warranty set forth in paragraph 7, Buyer shall notify Seller of the nonconforming product in writing not later than ten (10) days after Buyer becomes aware of the nonconformity and in any event not later than one (1) year after delivery of the product to Buyer. Following Seller’s receipt of such notice, Seller reserves the right to inspect the product at Buyer’s or Seller’s location to confirm any such claimed nonconformity. If, upon Seller’s consent, the alleged nonconforming product is returned to Seller for inspection and Seller subsequently determines that the product conforms to the foregoing warranty, Buyer shall be responsible for Seller costs for storage and related expenses pending Buyer’s return shipping instructions. If Seller determines that the product fails to conform to the warranty, Seller, at its sole option, shall: (i) repair the product; (ii) replace it with a product that conforms to the above warranty; or (iii) return to Buyer the price, or that portion of the price, paid for the nonconforming product. Seller’s remedial obligations hereunder are conditioned on the product not having been subjected to misuse, abuse or alteration. Transportation or traffic damages are to be noted on the delivery copy of Seller’s manifest and/or bill of lading. No inspection or investigation of claim by Seller shall be deemed a waiver of this requirement.
EXCLUSIVE REMEDY
The remedies set forth in paragraph 8 shall be Buyer’s exclusive remedies for products that fail to conform to the warranty in paragraph 7 above or for any other nonconformity of defect existing or alleged to exist in the product.
WAIVER OF CONSEQUENTIAL DAMAGES
Seller shall not be liable to Buyer, whether in contract, tort or otherwise (including strict liability) for any special, incidental, indirect or consequential damages whatsoever, without regard to whether such damages are foreseeable, including but not limited to damages for loss of profits or revenue, loss of use of any equipment or technology, damage to other tangible property of Buyer, cost of capital, cost of downtime or delays or claims of customers. This provision shall survive the completion of performance under the Purchase Order.
LIMITATION OF LIABILITY
Seller’s aggregate liability to Buyer, and to persons or entities claiming through Buyer, arising out of this Agreement, whether such liability arises in contract, tort or otherwise (including strict liability), at law or in equity, shall not exceed the price, or portion thereof, actually paid by Buyer hereunder. Chargeback fees from the Buyer’s customers are the sole responsibility of the Buyer, and Buyer agrees not to claim any chargebacks against the Seller for any fees, damages, or returns resulting from such transactions.
INDEMNITY
Buyer shall indemnify Seller and Seller’s officers, directors and employees against any and all liability and associated expense (including reasonable attorney’s fees) they may incur in connection with claims asserted by persons or entities not a party to this Agreement for personal injury (including death) or property damage in any way connected with the sale, transportation, use or possession of the product, including its design, whether such claims arise in contract, tort or otherwise (including strict liability), whether in law or in equity, except to the extent such liability is adjudged by a court of competent jurisdiction to have been caused solely by the negligence or intentional misconduct of the person or entity to whom indemnity would otherwise be provided hereunder. Buyer expressly waives any right, whether arising under contract or by operation of law, to request indemnity or contribution from Seller with respect to liability Buyer may have for the claims of persons or entities not a party to this Agreement in any way arising out of their sale, transportation, use, design or possession of any product purchased and sold hereunder.
PURCHASER’S DESIGNS, PLANS, DRAWINGS, SPECIFICATIONS AND
REQUIREMENTS
For any product that is not included in Seller’s standard product line offered for sale generally in the usual course of Seller’s business, it is agreed that Buyer has engaged Seller to manufacture such product to Buyer’s specifications and requirements. Seller shall not be responsible for the adequacy of prints, drawings, specifications and requirements respecting such product or for the adequacy of the design represented thereby. Seller also shall not be responsible for the adequacy of the materials incorporated in such product or for testing or otherwise determining the sufficiency and applicability of the design. Seller shall not be responsible for determining or assuring that such product or the use or application of such product conforms with applicable federal, state or local laws, rules or regulations. Seller’s only warranty with respect to such products shall be as set forth in paragraph 7. All designs, plans, prints, or drawings or whatever kind prepared by Seller with respect to such products are and shall remain the sole property of Seller.
ADVICE BY SELLER
The giving or failure to give advice or recommendations of any character by Seller shall not impose liability upon Seller nor grant Buyer any license to the use of any of Seller’s patents, inventions, trademarks or trade names.
EQUIPMENT
Any equipment (including extrusion dies, backers, bolsters, jigs, tools, etc.) which Seller specifically constructs or acquires for use on Buyer’s extrusion order shall be and remain Seller’s property and in Seller’s sole possession and control. Any charges billed (the “Service Fee”) to Buyer by Seller therefor shall be for the use of such equipment only in connection with this Agreement and shall confer on Buyer no right of any kind with respect to such equipment. If Buyer fails to pay any of the amounts due Seller for a period of six (6) months, or breaches any of the terms and conditions, or if bankruptcy or insolvency proceedings are commenced by or against Buyer, or if Buyer shall make an assignment for the benefit of creditors, or if a receiver shall be appointed for Buyer, all of the Buyer’s rights in and to the equipment shall be forfeited to Seller. The Seller may use or dispose of such equipment as it, in its sole discretion, deems appropriate, and notice is hereby given that if the equipment is not used for 2 years, it will be disposed of in a manner deemed appropriate by the Seller.
PATENTS
If any material shall be manufactured or sold by Seller to meet Buyer’s specifications or requirements and is not a part of Seller’s standard product line offered by it for sale generally in the usual course of Seller’s business, Buyer agrees to indemnify Seller and Seller’s officers, directors and employees against all liability and associated expense (including reasonable attorney’s fees) for actual or alleged infringement of any United States or foreign patent and to defend any suits or actions which may be brought against Seller for any alleged infringement because of the manufacture or sale of any such material.
TRANSPORTATION
F.O.B. Shipping Point. Where route, method and agency of transportation are determined by Seller and are in excess of 20,000 lbs shipped, actual transportation charges will be absorbed by Seller on shipments within Seller’s normal trading area. All orders totaling less than 20,000 lbs from one location will be shipped freight pre-paid and invoiced. Where route, method and agency of transportation are not determined by Seller, Buyer will be invoiced for the excess, if any, of actual transportation charges above the lowest applicable charges which would have incurred if Seller determined route, method and agency. Any excess in transportation costs due to the length of extrusions ordered by Buyer will be paid by Buyer. All orders accepted as C.O.D. by Seller, regardless of volume, will be shipped freight collect and C.O.D. charges will be paid by Buyer at the time of delivery.
COMPLIANCE WITH LAWS
Although the Seller will comply with applicable laws at the location of its manufacture of products, it shall not be obligated to comply with any laws, ordinances, codes, rules or regulations relating to the design, production or sale of the end product into which the Seller’s products are incorporated, as all such compliance is the Buyer’s responsibility.
INDEPENDENT BUSINESSES
Seller and Buyer acknowledge and agree that they are independent businesses and neither the Seller nor the Buyer has the authority to bind or make any commitments on behalf of the other.
CHANGES
Seller assumes no responsibility for any changes by Buyer in the specifications identified in the Agreement as originally issued, unless such changes are confirmed in writing by Buyer and accepted in writing by Seller. Seller’s acceptance of any such change may be conditioned on prior agreement to mutually acceptable changes in price and schedule for delivery of the product.
ELECTRONIC COMMUNICATIONS
The parties agree that all communications or other records with respect to any transactions under this Agreement, including those required to be in writing, will have legal effect, validity and enforceability if provided in a retrievable and reproducible electronic or tangible medium.
SEVERABILITY
The invalidity or unenforceability of any term or provision of this Agreement will not affect the validity or enforceability of any of the other terms or provisions hereunder, and if any term or provision of this Agreement is held to be to any extent invalid or otherwise unenforceable by any court of competent jurisdiction, such term or provision will be construed as if it were written so as to effectuate to the greatest possible extent the expressed intent of this Agreement, and the remainder of this Agreement will not be affected thereby and will remain valid and enforceable.
WAIVER
Waiver of any default of Buyer will not constitute a waiver of any subsequent default, whether or not this Agreement provides for delivery of the goods in installments. Any deviation from the standard terms and conditions shall not cause this Agreement to become invalid.
CONFIDENTIAL INFORMATION
Each party agrees to hold in confidence and not disclose to any third party or use for its own benefits, other than as may be approved by the disclosing party, any confidential or proprietary information supplied to it by the other party hereto in connection with this Agreement. Confidential Information will not include information which (i) is within or becomes part of the public domain, (ii) is disclosed by a third party not under an obligation of confidentiality with respect to such information, (iii) was already within the party’s possession prior to its disclosure by the disclosing party or (iv) is independently developed without use of the disclosing party’s Confidential Information.
INTELLECTUAL PROPERTY
Except as otherwise provided in this paragraph, no intellectual property or proprietary information is being sold, granted, transferred, licensed, or assigned in connection with this Agreement. Buyer’s access and use of any intellectual property and proprietary information of Seller included in and part of the goods sold hereby will be nonexclusive and limited to the use and maintenance of the goods sold hereby as contemplated by this Agreement.
GOVERNING LAW
This Agreement shall be interpreted in accordance with the laws of the State of Pennsylvania.
NOTICE
Notice to either party under any provision of this Agreement shall be deemed good and sufficient if sent by email or registered or certified mail to the last known post office address of such party, and shall be effective upon posting.
CANCELLATION
This Agreement may not be canceled without Seller’s prior written consent and by prior payment to Seller of a sum equal to the total of out-of-pocket expenses incurred in connection with the Purchase Order, including but not limited to any charges made to Seller by suppliers for cancellation, plus a reasonable sum for overhead expenses and lost profits, as reasonably determined by Seller.
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of Seller and Buyer respecting its subject matter and supersedes any prior or contemporaneous understandings. The contract evidenced by this Agreement may not be amended or rescinded except in a written document signed by authorized representatives of both Seller and Buyer.
NON-ASSIGNABILITY
This Agreement is neither transferable nor assignable by either Buyer or Seller except to (i) affiliates, subsidiaries or successors to the business of Seller to which this Agreement relates or (ii) with the consent of the other party.