General Terms and Conditions for Sale

1. TERMS PARAMOUNT

The contract between Purchaser and Seller shall be solely as defined hereby, together with all of the documents or attachments referenced herein, except as it may be modified pursuant to the terms hereof. The terms of this contract shall be deemed to be accepted by the Purchaser on signature or by accepting performance or performing any obligation under the contract.  In the event of any conflict between the terms of the contract as defined hereby and the terms of the Purchaser’s purchase order, letter of credit or other document, incidental to this contract, the terms set forth herein shall prevail. Any conditions of or exceptions which may be stated in any communication or document received by Seller from Purchaser shall be of no effect unless specifically agreed to in writing by Seller. This Sales Confirmation constitutes notice of objection to any conditions in Purchaser’s inquiry or purchase order or any other documents which are contrary or in addition to the conditions set forth herein. All offers are made and orders for the goods accepted solely on the basis of the terms of this contract irrespective of whether and when alternative terms are submitted by the Purchaser.       

2. Warranty

SELLER WARRANTS THAT ALL MATERIAL CONFORMS TO CONTRACT SPECIFICATIONS. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED OF MERCHANTABILITY, FITNESS OR OTHERWISE, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE OF THE CONTRACT.

3. Quantity

Unless otherwise specified, Seller may deliver and Purchaser will accept up to ten percent (10%) more or less than the total contract quantity. Where material is sold on an actual weight basis, mill weights shall be conclusive.

4. Partial Shipments

Unless otherwise specified, Seller shall have the right to make partial shipments. Each partial shipment shall be deemed a separate sale and payment shall become due therefor in accordance with the terms of payment.

5. Risk Of Loss

Purchaser shall bear all risk of loss or damage to or destruction of the material covered hereby from after delivery at the point of delivery stipulated in the contract, unless otherwise expressly provided.

6. Delay In Perfomance

Delivery schedules are approximate only. In no event shall Seller be liable for any delay in delivery of the material for whatever cause, unless said failure or delay is due to the willful or negligent conduct of Seller.

7. Claims
  1. Shortages - All claims for shortages in deliveries must be made promptly after receipt of the material by Purchaser. All claims for shortages must be supported by documentary evidence in the form of exceptions taken on delivery receipt (however denominated) furnished by Purchaser to the delivering carrier. Failure to take such exceptions at time of delivery shall constitute an absolute bar to any claim.
  2. Damages during Transit - All claims for damages relating to rust and/or physical damage to the material occurring during handling and/or transit shall be made to Seller in writing, with full particulars, not later than forty-five (45) days after release of the material to Purchaser. Any such claims not made in accordance with the foregoing shall be time barred.
  3. Quality Related Claims - All claims of damaged or defective materials are barred unless reported in writing by Purchaser to Seller, with the full particulars, promptly after the damage was or reasonably should have been discovered and full facilities are offered Seller for inspection and investigation. Seller will not consider any claims or rejections for material that is not in the original form as sold unless it is clearly evident that such defect could not be detected prior to the processing of material. All claims must be made by registered or certified mail, must state with particularity the defect or damage complained of and must be supported by documentary evidence. In no event may any claim be made more than forty-five (45) days after material is released by Seller, after which period any such claim will be deemed time barred. In the event that a timely and bona fide claim is made with respect to damaged or defective material, Purchaser shall be entitled to Seller’s sole and exclusive option to replacement of the material, refund of any purchase price paid therefor or an allowance. SELLER SHALL NOT BE OTHERWISE LIABLE FOR SUCH DAMAGED OR DEFECTIVE MATERIAL OR ITS USE OR FOR CONSEQUENTIAL OR SPECIAL DAMAGES.  Purchaser’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 hereby. In case of a dispute as to whether material meets contract specifications, Seller or Purchaser may designate a mutually acceptable independent test 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 such examination shall be borne by Seller with respect to each item found not to conform to specifications and by Purchaser with respect to each item found to conform to specifications).
  4. Notwithstanding anything in this contract to the contrary, Seller's aggregate liability for claims made under, or in connection with, this this contract for whatever reason shall be limited to the aggregate purchase price allocable to the good(s) giving rise to the claim.
8. Seller’s Remedies

In the event that Purchaser fails to perform its obligations, Seller, at its option, may cancel the contract and recover from Purchaser its damages including its expenses, mill cancellation fees and the difference between the contract price and the lesser of Seller’s cost or the market price at point of delivery, or Seller may dispose of the material publicly or privately for Purchaser’s account and apply the net proceeds, after deducting expenses of disposition, against the purchase price. In the case of any deficiency, Purchaser shall remain liable therefor. Seller’s expenses in either case shall include reasonable attorney’s fees and other costs of enforcing its rights. Purchaser grants Seller, in the event Purchaser fails to timely pay for any materials or fails to take delivery of any materials, the right to offset any actual or anticipated Seller’s costs of storage, financing, and resale price loss related to such materials, against any prepayments made by Purchaser for materials. This offset right and application of funds shall be in addition to, and not in substitution for, other rights and remedies available to Seller by law and other provisions of this contract.

9. Purchaser’s Remedies

Except as otherwise provided herein, failure of Seller to perform its obligations shall entitle Purchaser as its sole remedy, at Seller’s sole and exclusive option, to replacement of material shipped, refund of any purchase price paid therefor or an allowance. Purchaser shall not be entitled to cancel this contract or any sales order for any reason. Seller shall not be liable for any indirect, incidental, consequential, or special damages.

10. Interest Due on Late Payment

If payment is not made on the due date, Seller, in addition to its other legal rights, shall be entitled to interest on the amount due from the due date until payment calculated according to the prime rate applied by US primary banks, as published by the Wall Street Journal on the day of Seller’s invoice becoming due and owing.

11. Suspension of Future Shipments – Change of Credit Terms

Purchaser hereby represents that it is solvent and Purchaser’s signing of any delivery receipt (however denominated) furnished by Purchaser to the delivering carrier shall constitute a further representation of solvency at the time of signing such receipt. Seller shall have the right to withhold shipment of any portion of the material covered by this contract or any other existing contract between Seller and Purchaser, in the event Purchaser fails to make payment when due under any contract between Purchaser and Seller. Said action on the part of Seller shall not release Purchaser from its obligation to accept and pay for such remaining portion of material if and when shipped by Seller.

If at any time there is a change in the financial conditions or structure of Purchaser, 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 Purchaser becomes insolvent, makes an assignment for the benefit of creditors, or a petition in bankruptcy with respect to Purchaser is filed, or if any lien, arising from judicial process or otherwise, is placed upon any material asset of Purchaser or if Purchaser breaches any provisions hereof or fails to make payment for any reason whatsoever pursuant to any agreement between Purchaser and Seller, then Seller, in its sole discretion, shall have the absolute 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.

12. Letters of Credit

In the event of sale on Letter of Credit terms, the specifications of said Letter of Credit shall for all purposes remain subordinate to the terms of this contract.  

13. Modifications

 The contract constitutes the entire agreement between the parties and no modifications shall be effective unless agreed to in writing, signed by both parties.

14. Non-Waiver of Terms

Failure of Seller to insist upon strict performance of any terms and conditions hereof shall not be deemed a waiver of any rights Seller may have. The shipping or receiving of any material shall not be deemed a waiver of any rights concerning a failure by Purchaser to comply with any provision hereof. Waiver by Seller of any provision hereof shall not constitute a waiver as to any other provision, and shall not affect the right of Seller to exercise thereafter any right or remedy in the event of any other default whether similar or not.

15. Representations

Purchaser and Seller agree that no representations have been made or relied upon, except as specifically stated herein.

16. Assignment

This contract may not be assigned by Purchaser without the written agreement of Seller. Seller shall be entitled to assign partially or entirely its interest, claims and rights under this contract to its affiliates and their respective financing banks or risk sharing entities.

17. Severability

 Any legally invalid provision hereof shall be considered severable.

18. Trade Measures

Should the goods to be delivered under this contract become or be likely to become at any time subject to any trade measures or trade proceedings imposed by or initiated by any law, governmental order, rule, regulation or direction involving the actual or potential application of duties, quotas, tariffs, sanctions, embargoes, or other trade relief actions or trade restrictions in the United States or Canada, Seller, at its sole discretion, shall be entitled to either (i) terminate this contract or suspend its obligations under this contract, either partially or entirely, by giving written notice of termination or suspension to the Purchaser, or (ii) require Purchaser  to reimburse on invoice any additional charges , tariffs or duties imposed on the goods.

19. Force Majeure
  1. In this contract, "force majeure" means any cause whether direct or indirect preventing, delaying or impairing either party from performing any or all of its obligations (save for any payment obligations which are excluded from  the operation of this clause) due to events beyond its reasonable control, including, without limitation: (i) strikes, lock-outs or other industrial disputes (whether involving the workforce of the party so prevented or of any other party); (ii) act of god, war, riot, piracy, civil commotion, malicious damage; (iii) compliance by it or any of its suppliers with any law or governmental order, rule, regulation or direction; (iv) accident, breakdown of plant or machinery, seizure, fire, flood, storm affecting it, its suppliers, shippers or sub-contractors, consequences of pandemics; or (v) default of suppliers, shippers or sub-contractors.
  2. If either party is prevented, delayed or impaired in the performance of any of its obligations under this contract  by force majeure, that party shall without unreasonable delay serve notice in writing on the other party specifying the nature and extent of the force majeure and shall, subject to service of such notice, have no liability in respect of the performance of such of its obligations as are prevented, delayed or impaired by the force majeure during its continuation and for such time after it ceases as is necessary for that party, using all reasonable endeavors, to recommence its affected operations in order for it to perform its obligations. either party may but is not obliged to give notice of a potential force majeure event. such notice shall not be treated as a notice of an actual force majeure event and will not relieve a party from giving notice of an actual force majeure event.
  3. If either party is prevented, delayed or impaired by force majeure from performance of its obligations for a continuous period in excess of three months, either party may terminate this contract forthwith on service of written notice on the other party, in which case neither party shall have any liability to the other except in relation to obligations arising prior to the declaration of force majeure event under this clause.  
20. Retention of Title

Notwithstanding applicable incoterms set forth in this contract, Seller shall retain full title on the goods unless and until the full invoice amount is paid by Purchaser and duly cashed by Seller.

21. No Set-off

Purchaser shall effect payment for the goods delivered without any right of set-off or counterclaim whatsoever and free and clear of any deductions on the due date.

22. Entire Agreement

Unless varied in accordance with its terms, this contract, together with its recitals and annexes, which constitute an integral part hereof, constitutes the exclusive and entire agreement between the parties as to the subject matter hereof and no agreements, representations or warranties between the parties other than those set forth herein shall be binding on the parties. Notwithstanding the above, this contract may be executed in one or more copies and may be exchanged by email or facsimile, with each considered to be valid and binding between the parties.

23. Sanctions

In the event that either (i) Purchaser or any companies affiliated with Purchaser, or any of its owners, directors, officers, employees, agents or representatives become the subject of any sanctions administered and/or enforced by the US Department of Treasury’s Office of Foreign Assets Control (OFAC), the United Nations, the European Union, Her Majesty’s Treasury, the Swiss State Secretariat for Economic Affairs (SECO) or any other relevant government authority (collectively the “Sanctions”), or (ii) any Sanctions affect, or threaten to affect, Seller or Purchaser’s performance under this contract, Seller shall be entitled to suspend deliveries under the present contract and/or terminate the present contract at any time with immediate effect. For avoidance of doubt, Purchaser’s payment obligations for delivered material will remain valid and enforceable, notwithstanding any such termination or suspension by Seller. Purchaser shall not transfer the goods to any third party that is subject to sanctions (a “Third Party Sanctioned Entity”), by on-selling, supplying, allowing the off-take, exporting or in any other way transferring the goods to such Third Party Sanctioned Entity.    

24. Governing Law

The contract between Purchaser and Seller as defined by this Sales Confirmation shall be governed by the laws of the State of Texas.

25. Arbitration

Any controversy or claim arising out of said contract, or the breach thereof, shall be determined by arbitration in Harris County, State of Texas in accordance with the commercial Arbitration Rules of the American Arbitration Association and judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof.

 

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