Terms and Conditions
WOLVERINE TUBE, INC. DOING BUSINESS AS (DBA) WOLVERINE INDUSTRIES (“Seller”)
GENERAL TERMS AND CONDITIONS OF SALE
1. Applicable Law and Jurisdiction. These general terms and conditions apply to, whether written or oral, all proposals and quotations submitted by Seller, to all purchase orders received by Seller, and to all goods, products, materials, or services (including any installment of goods or any part of them) sold and/or provided by Seller (collectively, “Goods”), except as otherwise specifically provided in a document issued by Seller setting out the Goods required to be delivered by the supplier and all other terms specific to the Goods, including all documents referred to therein, signed by Seller, and between Seller and the purchaser named on or to which such proposal, quotation, purchase order, or other agreement is directed or received (“Buyer”). This sale or any sale resulting herefrom consists only of these terms and conditions and those in other documents which are referred to herein or are attached hereto or in a document subsequently signed by Seller (all of which constitute the “Agreement”). THIS ORDER SHALL BE GOVERNED, CONSTRUED AND ENFORCED UNDER THE LAW OF THE STATE OF ALABAMA INCLUDING THE UNIFORM COMMERCIAL CODE IN FORCE ON THE INITIAL DATE OF THE AGREEMENT (“UCC”), EXCEPT AS PROVIDED HEREIN. The U.S. Convention on the International Sales of Goods shall not apply. Any services to be provided hereunder, whether or not they are otherwise ancillary to and part of a sale of goods (as separate units), shall be considered ancillary to a sale of goods and the UCC shall apply to all goods and services to be provided hereunder. THE COURTS OF MORGAN COUNTY, ALABAMA SHALL HAVE EXCLUSIVE JURISDICTION OVER THE PARTIES AND THE CLAIMS ARISING UNDER OR RELATED TO THIS ORDER. The parties stipulate to the convenience of such courts in general, as to all litigation. Any declaration of unenforceability of a provision shall be as narrow as possible and shall not affect the enforceability of the other provisions.
2. Formation, Integration and Modification. (a) The Agreement supersedes all previous quotations and agreements pertaining to the Goods. Delivery to Seller of Buyer’s acceptance of a Seller’s quotation (according to its terms), Seller’s actions in reliance on Buyer’s oral acceptance of a written or oral quotation, including the commencement of performance of Seller’s contractual duties, or Buyer’s receipt of the Goods, will constitute a binding contract under the terms of the Agreement. The Agreement is subject to Seller’s revocation or cancellation without liability until it is approved by Seller at its home office. Notice of such approval may be furnished to Buyer in the form of an acknowledgement, shipment, or other form of express approval. (b) An order submitted by Buyer orally or in a purchase order or other writing (whether or not it contains terms or conditions modifying, adding to, repugnant to, or inconsistent with these Terms and Conditions) may be accepted, approved or filed by Seller, provided, however, for the avoidance of doubt, unless otherwise agreed in writing, Seller does business only on the terms and conditions contained in this Agreement and any Buyer who makes offers to Seller or accepts offers made or orders placed by Seller (whether expressly or by performance) shall be deemed to accept the terms and conditions contained in this Agreement to the exclusion of all others including the Buyer’s own business terms. Seller shall not be deemed to have in any way enlarged or modified its liabilities or obligations under the Agreement by filing such order or by failing to further object to Buyer’s terms or conditions. (c) An order placed with and accepted by Seller can be canceled, changed or suspended by Buyer only with the prior written consent of Seller and only upon terms that will indemnify Seller for all losses incurred by Seller associated with Buyer’s cancellation, change or suspension, including but not limited to, the costs already incurred by Seller in performance of Seller’s contractual duties and any profits which Seller would have received had the contract been completed. Seller may, at its option, cancel all deliveries of undelivered Goods or any accepted orders effective immediately by giving Buyer written notice of such cancellation if (i) Buyer makes an assignment for the benefit of creditors, if a petition or other proceeding, voluntary or involuntary, is filed with respect to Buyer under applicable bankruptcy, reorganization or other insolvency laws, if Buyer generally becomes unable to pay its debts as they become due, or if Buyer fails to remit payment to Seller for Goods in accordance with the terms hereof; or (ii) Buyer is in breach of its contractual duties under this Agreement. (d) The Agreement is a final, complete and exclusive statement of the Agreement of the parties. No modifications, limitations, waivers or discharge of the Agreement or any of its terms shall bind Seller unless in writing and signed by Seller’s authorized employee at its home office. Notwithstanding anything to the contrary in the Agreement, no modifications, limitation, waiver or discharge of any provision of the Agreement shall affect Buyer’s liabilities to Seller accrued prior thereto. Seller may correct unilaterally any mathematical and typographical errors in the Agreement. Typed provisions of the Agreement take precedence over printed provisions. A course of performance, course of dealing, or customs in the trade shall not constitute a modification or waiver by Seller of any right by Seller. (e) All references in sales brochures, technical data sheets, and offers as to technical specifications, price, and other details of the Goods are approximate and shall not be binding on Seller unless expressly incorporated into an accepted order. (f) The Agreement is only for the benefit of the parties, except all disclaimers and limitations applicable to Seller shall be for the benefit of Seller’s agents, employees, contractors, and suppliers. If any provisions are determined to apply to third parties, all other provisions including limitations, waivers, and disclaimers shall also apply.
3. Prices, Payment and Risk of Loss. (a) Prices contained in individual written quotations or proposals are subject to change without notice. The total price to be paid for the Goods shall be the sum stated on each order, plus any freight charges or other costs accrued during delivery, provided, however, that the prices listed on each order do not include taxes, and Buyer shall pay all applicable sales or other taxes levied with respect to Goods (and replacements) (“Taxes”) and the Agreement, unless exempt therefrom. Should Buyer claim that it is exempt from any Taxes then Buyer shall furnish Seller with an exemption certificate which has been issued by an appropriate governmental authority. Buyer hereby agrees to indemnify and hold Seller harmless for any and all Taxes that are the responsibility of Buyer and penalties or fines assessed against Seller or Buyer related thereto, whether or not due to Buyer’s claimed exemption from such imposition. All prices are in United States dollars. Buyer shall pay all government fees levied on the installation and inspection of the Goods. Buyer shall pay upon receipt all invoices rendered by Seller for any such items Seller may pay. (b) This Agreement is for a shipment contract, and the Goods shall be delivered F.O.B. Seller’s dock or made available for pick up by the Buyer at Seller’s plant. Whether or not the Seller prepays shipping charges, risk of loss passes to Buyer upon tender of the Goods to a carrier. Seller’s breach of the Agreement shall not affect the passing of the risk of loss to Buyer notwithstanding any provision of law to the contrary. Buyer assumes all responsibility for payment of freight, and all costs associated therewith, which freight charges and other costs may not be reflected in the prices quoted by Seller. Seller may, at Seller’s option, prepay freight and seek reimbursement from Buyer. Unless requested in writing by Buyer, Seller will not insure the Goods against loss during transit. If Seller so insures any Goods against loss during transit, the cost of such insurance shall be the responsibility of Buyer. (c) Seller may unilaterally increase prices to cover increased costs (plus reasonable overhead and profit) of design, materials, and manufacturing required by changes required by Buyer after the date of any quotation. (d) Payment terms shall be thirty (30) days net unless otherwise specified in an applicable invoice. Invoices shall be payable only in the agreed currency. In the absence of any written agreement to the contrary, invoices shall be payable in U.S. Dollars. If any invoice is not paid in full within thirty (30) days following the date of invoice, Seller shall be entitled to charge interest on the delinquent amount equal to two percent (2.0%) per month to the extent allowed by law and otherwise at the highest written contract rate allowed by law. In addition to Seller’s right to cancel accepted orders pursuant to Section 2(c), Seller may from time to time demand different terms of payment from those specified herein whenever it reasonably appears that Buyer’s financial condition requires such change, and may demand assurance of Buyer’s ability to pay whenever it reasonably appears that such ability is in doubt. Such demand shall be in writing, and Seller may, upon making such demand, suspend shipments hereunder. If, within the period stated in such demand, Buyer fails or refuses such different terms of payment, or fails or refuses to give adequate assurances of his ability to pay, Seller may, at Seller’s option, treat such failure or refusal as a repudiation of any portion of an accepted order that has not ben fully performed. In all events, time shall be of the essence with regard to Buyer’s payment obligations to Seller hereunder. (e) With respect to amounts properly invoiced hereunder, Buyer shall have no right of offset by virtue of any claim against Seller, unless and until such claim has been finally adjudicated in favor of Buyer by a court of competent jurisdiction and such adjudication is not subject to appeal, or Seller has acknowledged the validity and amount of such claim in writing. (f) All amounts due upon the occurrence of an event which requires the action or cooperation of Buyer which Buyer fails to supply timely shall become due upon such failure.
4. Delivery, Carrier and Routing. (a) Shipping dates are estimates and may be revised by Seller upon receipt or scheduling of Buyer’s order. All shipping dates are approximate, and Seller shall not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller’s reasonable control. All shipping dates are further subject to Seller’s prompt receipt from Buyer of a written purchase order or acceptance, letter of credit, down payment, and other conditions as specified in the Agreement, and of all information and approvals necessary to provide the Goods and to grant any credit proposed in the Agreement. (b) Unless the parties agree otherwise, Seller shall have the right to select the carrier(s) and routing of shipment. (c) If shipment of any item or other performance by Seller is delayed at the request of or due to the fault of Buyer, Seller may at its option hold the item at the place of manufacture at the risk and expense of Buyer from the time it is ready for shipment. In the event of any such delay in shipment, full and final payment of an item shall be due and payable thirty (30) days after Buyer is notified that the item is ready for shipment. If Seller is unwilling to accommodate Buyer by holding such item, Buyer shall accept shipment immediately. (d) Dates for Seller’s performance are estimates only. (e) All specifications, technical documentation, and Goods shall be deemed approved and/or accepted by Buyer if Buyer does not provide a written objection and/or rejection within five (5) days of receipt or other reasonable time established by Seller. Any objection and/or rejection by Buyer must be in writing, state with specificity all defects and non-conformities upon which Buyer will rely to support its rejection and include a sample of the defect. ALL DEFECTS AND NON-CONFORMITIES WHICH ARE NOT SO SPECIFIED ARE WAIVED.
5. General Express Warranties. (a) Seller warrants to Buyer only that the Goods will be free from any defects in materials and workmanship which are discovered within the warranty period, subject to disclaimers and limitations of the Agreement. The warranty period, measured from date of shipment by Seller, shall be one (1) year. This warranty is not a warranty of performance but a limited warranty as to the condition of the Goods at the beginning of the warranty period. Because the Goods may be subject to a wide variety of use, installation, maintenance and cleaning, the warranty is only against such defects and not against any other failures such as, but not limited to, those due to wear and tear, and normal maintenance and perishable items are excluded from this warranty against defects. (b) Seller warrants to Buyer that the Goods will be as described in the Agreement in all material respects, subject to the limitations stated herein and Seller’s published and internal standards. Seller may, in its discretion, rely on any generally accepted industry standards. (c) Seller’s warranties shall apply only if the Goods: (i) have been installed, maintained, and used in conformity with instructions furnished by Seller from time to time, if any; (ii) have been subjected to normal use for the purpose for which Goods were designed; (iii) have not been subjected to misuse, negligence, or accident; and (iv) have not been altered or repaired by any persons other than Seller in any respect which, in the judgment of Seller, adversely affects the condition or operation of the Goods.
6. Patent Express Warranties. Seller shall defend and indemnify Buyer from any claim which asserts that the Goods or their inherent methods of operation, intrinsically, directly infringe any United States patent, except as to a claim based on Buyer’s use of the Goods as a step in an overall process or as an element in an overall combination. Seller’s obligation shall not apply to a claim based on Goods or portions thereof specified, designed, or manufactured by Buyer. Buyer shall notify Seller promptly of any assertions of patent infringement and provide Seller with assistance and information required by Seller, or Seller shall have no further obligation to defend or indemnify. Seller shall defend with its counsel or other counsel of its choice and shall have the sole right, without consultation with Buyer, to take all action Seller deems appropriate to prosecute or settle such claims. Seller’s exclusive obligation to indemnify as to Goods declared to infringe is limited to the acquisition of a license, and the replacement of Goods with non-infringing Goods, or the return of the purchase price and shipping costs in exchange for the Goods, as Seller may elect. This section states Seller’s entire and exclusive obligation regarding patent infringement.
7. Disclaimer and Limitation of Express Warranties. There are no express warranties other than those contained in the Agreement. Any representations as to performance and other matters, except as contained in the Agreement, were for illustrative purposes only and do not constitute a warranty. Whether or not the Goods are to be used exclusively by Buyer, there shall be no third party beneficiaries to the express warranties contained herein. Seller does not warrant any portion of the Goods not furnished by Seller (whether or not specified by Buyer), but Seller shall assign to Buyer upon request all assignable warranties of Seller’s suppliers related to such Goods. All descriptions, shipping specifications and illustrations of the Goods or Seller and its quality and other systems and capabilities in catalogues, brochures and price lists or otherwise provided by Seller are intended for general guidance only and Seller is not responsible for any errors or omissions therein or for any loss or damage resulting from reliance on them. Seller does not warrant that it or the Goods are in compliance with any entity, organization or industry standards, guidelines, or procedures unless specifically contained in the Agreement.
8. Remedy and Limitation of Seller’s Liability. Defective or non-conforming Goods or parts thereof discovered during the warranty period shall be replaced by Seller without additional charge and shipped to Buyer for reinstallation by Buyer at its cost, subject to the terms hereof. The warranty obligation of Seller is limited to the replacement of the Goods. In lieu of replacement, if Seller elects, Seller may, upon return of such Goods, keep the Goods and refund the purchase price. Buyer’s remedies shall be limited (even in the event of Seller’s default of its warranty obligations) exclusively to those provided in this section. IN NO EVENT SHALL SELLER’S LIABILITY FOR DAMAGES EXCEED THAT PART OF THE PURCHASE PRICE APPLICABLE TO THE GOODS WITH RESPECT TO WHICH SUCH DAMAGES ARE CLAIMED. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF THE SALE OF THE GOODS CONTEMPLATED HEREBY. Seller shall not be subject to liability for damages resulting from the handling, use or further processing of the Goods furnished under this Agreement. The warranties contained herein extend only to Buyer. Buyer waives any causes of action or theories of liability including, but not limited to, those arising under contract, the UCC, tort, strict liability, product liability, statutes, or otherwise, except as specifically provided herein. The replacement of Goods by Seller does not give rise to any new warranty except the warranty period provided for herein shall be extended by the length of any period from the date the defective or non-conforming Goods are received by Seller until the date or replacement Goods are delivered to Buyer.
9. Disclaimer of Warranties. THE WARRANTIES CONTAINED HEREIN ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED BY SELLER, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT THAT ANY OF THE GOODS FURNISHED UNDER THESE TERMS AND CONDITIONS DO NOT MEET THE WARRANTIES CONTAINED HEREIN, SELLER’S LIABILITY SHALL BE LIMITED TO REFUND OF BUYER’S PURCHASE PRICE OF THE DEFECTIVE GOODS OR TO THE REPLACEMENT OF SUCH DEFECTIVE GOODS WITH CONFORMING PRODUCTS. Seller does not warrant the Goods will comply with the requirements of any safety or environmental code or regulation of any federal, state, municipality or other jurisdiction beyond the specific express warranties in this Agreement.
10. Indemnification. Buyer shall indemnify Seller from any and all third party claims, damages, and expenses (including reasonable attorneys’ fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, contract, statute, or otherwise arising out of the use, storage, sale, processing or other disposition of the Goods, supplies or materials used in connection with the Goods, or parts manufactured with the Goods, if the action or inaction of Buyer or its employees, customers or agents, or Buyer’s design specifications, were a material or proximate cause of injuries or damages giving rise to claims against Seller.
11. Consequential, Incidental, and Other Damages. BUYER AND THIRD PARTIES SHALL NOT BE ENTITLED TO ANY CONSEQUENTIAL (WHETHER DIRECT OR INDIRECT), PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES, AS DEFINED IN THE UCC OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DIMINUTION IN VALUE, LOST INCOME OR PROFITS AND INTERRUPTIONS IN BUSINESS. This limitation shall be enforced regardless of whether Seller has defaulted in its warranty or other obligations. Any legal inability to limit or restrict the right of Buyer or a third party to such damages shall not affect the right of Seller to indemnification hereunder, and under no circumstance shall Buyer recover more than the purchase price actually received by Seller. Buyer acknowledges that the remedies provided herein are exclusive and in lieu of all other remedies available to Buyer at law or in equity.
12. Security Interest, Power of Attorney. In addition to any security interest granted by the UCC, Buyer hereby grants a security interest to Seller in all Goods and documents related thereto and proceeds and products therefrom to secure all obligations of Buyer to Seller, whether or not arising under the Agreement. Buyer shall take any such action and execute any documents (and expressly authorizes any such action taken by Seller) deemed necessary by Seller to perfect and maintain perfected such security interest granted hereunder. Buyer grants Seller an irrevocable power of attorney to sign Buyer’s name to a financing statement if necessary or convenient to perfect Seller’s security interest. In case of a default by Buyer, Seller may peaceably enter the premises of Buyer and others to repossess or render inoperable all Goods in which it has a security interest.
13. Proprietary Information; Intellectual Property. (a) Any invention or other information developed, conceived, discovered, reduced to practice, or generated by Seller in the performance of the Agreement or otherwise, including all rights, title and interest in any invention or other information, shall remain the sole property of Seller. Nothing herein shall constitute a license to or otherwise grant to Buyer of any rights in and to any of Seller’s intellectual property rights whether developed during performance of this Agreement or otherwise. (b) Buyer hereby assigns all right, title, and interest in and to any inventions and information jointly developed, conceived, discovered, reduced to practice, or generated with Seller in the performance of the Agreement without any further consideration. In the event that Seller is unable, for any reason whatsoever, to secure Buyer’s signature on any document or instrument necessary to effectuate the intent of this subsection, Buyer hereby irrevocably designates and appoints the Seller and its duly authorized representatives as Buyer’s agent and attorney-in-fact to act for and on Buyer’s behalf and to execute and file, and to take all further actions, as may be necessary or convenient to effectuate the intent of this subsection, with the same legal force and effect as if executed by Buyer.
14. Confidentiality and Nondisclosure. (a) Buyer acknowledges that any information disclosed to Seller has not and will not be confidential or a trade secret. Seller shall be under no obligation to refrain from using in its business any information, manufacturing processes or unpatented disclosures which may pass to it from Buyer in the performance of the Agreement. (b) Except as required by law, Buyer shall not disclose any of the terms or conditions of an accepted order, including price terms, to any third party (other than a permitted successor or assign) for any reason whatsoever. All specifications, drawings, sketches, models, samples, designs, technical information or data, written, oral or otherwise furnished by or on behalf of Seller, all proposals, plans and other information furnished by Seller in bidding, negotiating and performing the Agreement shall remain the property of Seller and shall be returned (together with all copies) promptly upon Seller’s request. Such information shall be treated as confidential, and shall not be used, disclosed or reproduced by Buyer, except as required in the course of performance hereunder. Buyer’s obligations of confidentiality hereunder with respect to each item of confidential information shall extend for a period of three (3) years from the date of Seller’s acceptance of the last order to which the items of confidential information in question pertain; provided, however that Buyer’s obligations of confidentiality hereunder with respect to any such items of information which rise to the level of a trade secret (as defined under applicable law) shall remain in full force and effect for so long as such information remains a trade secret under applicable law. For purposes hereof, the confidentiality obligations embodied herein do not extend to any information which, at the time of disclosure, (i) is already known or independently developed by Buyer; (ii) is in the public domain through no wrongful act of Buyer; or (iii) is received by Buyer from a third party who was free to disclose such information. The parties acknowledge that the rights of Seller hereunder are in addition to those rights Seller may have under common law or applicable statutes for the protection of trade secrets.
15. Force Majeure. Seller shall not be liable for monetary damages or otherwise for any delay or failure to perform any of its obligations, for the time and to the extent such failure to perform is caused by: (a) war, explosion, fire, flood, accident, severe weather or act of God; (b) strikes, lockouts or other labor troubles; (c) compliance with any governmental regulation, order or rule (foreign or domestic); (d) shortage or breakdown or other failure of facilities used for the manufacture or transportation of the products sold hereunder; (e) shortage or unavailability of labor, power, fuel, raw materials or other products necessary for the delivery of the Goods sold hereunder; or (f) any other cause or causes beyond the reasonable control of Seller or its suppliers. During periods when demand for available product exceeds supply, Seller may distribute its supply of raw materials and/or finished Goods among itself, for its own uses, its customers and Buyer in such manner as Seller deems practicable. Buyer agrees to accept, as full and complete performance by Seller, deliveries in accordance with such determination as Seller may make. In no event shall Seller be required to purchase material or product from third persons in the event that Seller invokes one of the above-mentioned clauses, nor will Seller be liable for any cost increases suffered by Buyer in purchasing product from a third party.
16. No Other Terms and Conditions. No modifications to these terms and conditions shall be effected by Seller’s receipt or acknowledgment of a purchase order from Buyer containing additional or different terms and conditions. No statements or agreements, oral or written, shall vary or modify these terms and conditions. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof.
17. Waiver. No waiver by either party of any breach of any of the terms or conditions contained herein shall be construed as a waiver of any succeeding breach of the same or any other term or condition contained herein. If any provision or part of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of this Agreement. 18. Assignability. Buyer may not assign this Agreement, by operation of law or otherwise, without the express written consent of Seller, and any such attempted assignment will be void. 19. Relationship of Parties. Seller and Buyer are independent contracting parties and nothing in the Agreement shall make either party the agent, joint venturer or legal representative of the other for any purpose whatsoever, or grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. Although third parties may be referenced, there are no third party beneficiaries to the Agreement. 20. United States Government Regulations. Buyer shall not engage in any transaction with respect to the Goods which violates any statute or regulation of the United States Government. 21. Time for Bringing Action. Any proceeding by Buyer for breach of the Agreement or any other right against Seller arising from or in connection with a payment cannot be filed nor maintained unless: (i) it is commenced within one (1) year after the cause for action has accrued; (ii) Buyer has given timely written notice to Seller of its claim as provided herein; and (iii) Buyer deposits the unpaid portion of the purchase price with the tribunal pending final adjudication. An action shall accrue no later than shipment of the Goods. Buyer must give Seller written notice of any claim of breach of the warranties contained herein within one hundred eighty (180) days after the occurrence of the event upon which such claim is founded; failure of Buyer to give such written notice shall constitute a waiver of all claims.
WOLVERINE TUBE, INC. DOING BUSINESS AS (DBA) WOLVERINE INDUSTRIES (“Buyer”)
Terms and Conditions of Purchase
1. This order is subject to all of the terms and conditions stated herein and it expressly limits acceptance to such terms and conditions without qualification limitation or addition thereto. Any additional or different terms proposed by the seller of goods or services provided pursuant to this order (the “Seller”) are rejected unless expressly assented to in writing by Buyer. Seller shall sign and return the acknowledgment copy hereof to Buyer and no other form of acceptance is binding on Buyer. Seller’s acceptance of the order and these Terms and Conditions shall be deemed to occur upon the earlier of: (a) Seller’s executing and returning the acknowledgement, (b) Seller’s commencement of work on the goods or services to be provided under this order, or (c) when Seller ships to Buyer any of the items ordered or renders for Buyer any of the services ordered herein.
2. Buyer reserves the right to cancel this order at any time, in accordance with the following provisions: (a) Default. If Seller defaults in performance of this order, or fails to make progress so as to endanger performance, or becomes insolvent, makes an assignment for its creditors, or is the subject of bankruptcy proceedings, Buyer may, by written notice, terminate this order for default. Thereafter, in addition to other legal and equitable remedies available to Buyer, Seller shall be responsible for Buyer’s additional costs in securing other performance of the terminated work and such other damages as may arise by reason of Seller’s default. In the event that this order is terminated for default of Seller and it is subsequently determined that Seller was not in default, the termination shall be converted into a termination of convenience under Paragraph 2(b) below, and Seller shall have no claim for lost profits, consequential or special damages or any other costs or damages beyond the termination claim allowed under Paragraph 2(b) below. (b) Convenience. Buyer may, by written notice, terminate this order in whole or in part at any time whenever it shall determine that such termination is in its best interest. Upon receipt of such notice, Seller shall stop work to the extent that the order has been terminated. Within thirty (30) days of receipt of a notice of termination under this Paragraph (b), Seller shall submit its claim, if any, for the cost of performing the work thru the date of termination and for the reasonable cost of terminating the work. Buyer shall pay for work acceptably completed prior to the termination date at the order price. Buyer and Seller shall agree on other amounts to be paid to Seller for work performed and reasonable costs occasioned by the termination. Nothing in this clause shall obligate Buyer to pay more than the total order price, as reduced by payments made prior to the termination.
3. The place of delivery shall be the Buyer’s place of business at the address specified in the shipping instructions on the front of this order form or such other destination as Buyer may indicate to Seller in writing. The terms of shipment unless otherwise specified on the front of this order form, shall be FOB Destination. However, in the event that the terms on the front of this order form call for payment of transportation charges by the Buyer, they shall be prepaid by Seller and invoiced to the Buyer by the Seller.
4. Seller’s timely performance is critical to the success of this order, and time will be deemed to be of the essence of this order. Seller will make deliveries strictly in accordance with the delivery schedule contained in this order. If Seller suspects or determines that deliveries will not be made in accordance with the delivery schedule contained in this order, Seller will advise Buyer in writing of the possible delay, the cause of such delay, and the proposed recovery schedule as soon as possible, and shall continue to notify Buyer of any material change in the situation. In the event that Buyer receives such a notification or if an actual failure by Seller to comply with the schedule occurs, Buyer may, in addition to all other remedies, require Seller, at Seller’s expense, to ship the items, goods or materials covered by this order via air freight or other expedited means of shipment to avoid or minimize delay.
5. Buyer has the right to inspect the goods and materials at destination for such time as may be reasonable under the circumstances, which shall be not less than one (1) year, after receipt by Buyer, and may reject and return at Seller’s expense any goods and materials which do not conform to Buyer’s instructions, specifications, description, drawings or other data or to Sellers warranties, express or implied. At its option, however, Buyer may elect to accept any nonconforming goods or materials and upon notification to Seller may deduct all of the costs, damages and loss incurred by Buyer as a result thereof from the price due Seller for such goods and materials or from any other amount due Seller from Buyer. Buyer shall not in any event be deemed to have accepted the goods or materials until after use by Buyer and a reasonable opportunity for discovery of defects. Buyer shall not be deemed to have waived the benefits of any warranty, express or implied, by inspection or acceptance of the goods and materials, and all such warranties shall survive acceptance and use by Buyer.
6. Risk of loss or damage to the goods and materials purchased hereunder remains in the Seller until they have been inspected and accepted by Buyer. Seller shall be responsible for and shall handle all claims against the transportation company for shortages, damages, theft or loss.
7. Buyer’s count shall be accepted as final and conclusive on all deliveries and shipments.
8. All discount periods contained in the terms of payment for the goods and materials purchased hereunder shall commence when same are received by Buyer or upon receipt of a proper invoice for same by Buyer, whichever is later. Invoices will be paid by Buyer based upon the date of receipt of the entire goods and/or services purchased under this order unless otherwise agreed to in writing.
9. If price is omitted and is not covered by a blanket order or agreement, this order is to be filled at the price last quoted or charged by Seller for such goods and materials or the lowest prevailing market price, whichever is lower. Seller agrees that any price reduction made in services or raw materials covered by this order subsequent to the placement of this order will be applicable to this order.
10. Seller agrees to protect, indemnify and hold harmless the Buyer, its successors and assigns and all persons claiming under Buyer from all costs, expenses, damages or claims arising out of any actual or alleged infringement of any patent rights based on the sale or use of materials covered by and purchased under this order.
11. Seller expressly warrants that (a) it has good and marketable title to all items, goods and materials covered by the order; (b) the items, goods and materials covered by this order and purchased hereunder shall conform to the specifications, requirements, drawings, samples and descriptions furnished by Buyer; and (c) the items, goods and materials covered by this order will be merchantable, of good and satisfactory material and workmanship, and free from any latent or patent defects, Seller acknowledges that Buyer has made known the particular purpose for which Buyer requires and will use the goods and materials purchased hereunder and Seller warrants that the goods and materials will be suitable and fit for such purpose. Seller further acknowledges that the goods and materials covered by this order may be incorporated by Buyer into its products. Seller warrants that all work or services furnished hereunder will (i) conform to the specifications, requirements drawings and descriptions furnished by Buyer; (ii) be of good and satisfactory workmanship; (iii) be performed by adequately trained and qualified personnel; and (iv) be performed in accordance with accepted industry standards.
12. Seller shall provide and maintain, without any additional charge to Buyer, an inspection system that complies with all specifications or requirements furnished by Buyer or Buyer’s customer in connection with this order. Seller shall tender to Buyer only items, goods and materials that have been inspected in accordance with such inspection requirements and found by Seller to be in conformity with all requirements of this order. Seller shall furnish a certificate of conformance for each batch or lot of items, goods or materials furnished under this order, certifying that Seller’s quality assurance department has inspected the items, goods or materials furnished under this order and verified that they conform in all respects to applicable specifications, requirements, drawings, descriptions and warranties applicable under this order. Seller shall maintain records of all inspections made in connection with this order for at least seven (7) years after the date of delivery of the last of the goods or services furnished hereunder, and shall furnish copies of such records to Buyer and Buyer’s customers upon request. If Seller discovers that any non-conformance exists, or is suspected to exist in any of the goods or services provided to Buyer, Seller shall promptly provide written notification to Buyer of becoming aware of this situation. This notification shall include all relevant information regarding the affected goods and/or services.
13. Seller agrees that it shall be responsible for, shall indemnify, defend and shall hold Buyer harmless from any claim, action, loss, expenses or damages resulting directly or indirectly from (a) any defect or nonconformity in such goods and materials; (b) any negligent (ordinary or gross) or willful act or omission of Seller, its employees, agents or sub- contractors; (c) any actual or alleged failure by Seller to perform its obligations under the order; and (d) any actual or alleged violations by Seller of such goods or services of any law, statute, ordinance or any governmental order.
14. Buyer shall have the right to make changes in drawings, specifications, designs, materials, time and place of delivery, packaging and method of transportation under this order. Should any changes result in a cost increase or decrease for the time of performance, an equitable adjustment will be agreed upon by the parties in writing. Seller agrees to accept any such changes, subject to this Paragraph
14. Notwithstanding the foregoing, no verbal or telephone modifications of this order shall be valid unless confirmed by Buyer in writing.
15. All information, drawings, specifications, data or requirements furnished by Buyer or prepared by Buyer in connection with this order shall remain the property of Buyer or Buyer’s customer, as applicable, and Seller agrees to keep such information confidential and will not disclose it to third parties. Further, Seller agrees to use such information only for the purpose of fulfilling its obligations under this order or as may otherwise be authorized by Buyer in writing and to destroy or return such information to Buyer upon Buyer’s request.
16. This order is subject to modification or cancellation by the Buyer at its option in the event of war, explosion, fire, flood, accident, severe weather, acts of God, strikes, lockouts, labor troubles, compliance with any governmental regulation, order or rule (foreign or domestic), shortage or unavailability of labor, power, fuel, raw materials or other products necessary for the delivery hereunder, or other conditions and events beyond Buyer’s control.
17. Seller represents, certifies and covenants to Buyer that it has complied with, and will at all times comply with, all applicable Federal, state and local laws, regulations, ordinances and executive orders with respect to the manufacture, sale and delivery of the items, goods, materials and services covered by and purchased under this order and all of Seller’s activities in connection with this order.
18. Seller represents and certifies to Buyer that Seller has in all respects complied with the applicable provision of The Fair Labor Standards Act, 29 U.S.C. #201 et sec., in the production and shipment of the goods and materials covered by and purchased under this order.
19. Seller and Seller’s employees, agents, personnel, subcontractors and representatives (“Representatives”) shall meet and all times comply with all of Buyer’s policies and procedures, including without limitation, Buyer’s policies regarding wrongdoing and fraud. Seller and Seller’s Representatives shall conduct their activities relating to this order in accordance with the highest ethical standards and in accordance with all applicable laws and regulations. Seller warrants that neither it nor any of its Representatives have offered or given, or will offer or give, any gratuity to Buyer’s employees, agents or representatives for purposes of securing this order or securing favorable treatment under this order. In the event that Buyer finds that gratuities are or have been offered by Seller or by any Representative of Seller to any employee, agent or representative of Buyer in violation of this Paragraph 19, Buyer may terminate this order pursuant to Paragraph 2(a), in addition to the exercise of any other rights or remedies provided to Buyer by law.
20. Seller shall maintain such public liability insurance, including products liability, completed operations, contractor’s liability, automobile liability and professional errors and omissions coverage, as well as Workers’ Compensation coverage and employer’s liability coverage, as will adequately protect Buyer against such damages, liabilities, claims, losses and expenses (including attorneys’ fees) hereunder. Seller agrees to submit certificates of insurance, evidencing its insurance coverage, when requested by Buyer.
21. No agreement or other understanding in any way modifying the terms and conditions of this order shall be effective or binding upon Buyer unless made in writing and signed by Buyer. In the event Seller has issued a proposal, any acceptance deemed to be contained herein is expressly made conditional on Seller’s assent to the additional or different terms contained herein.
22. The contract resulting from Seller’s acceptance of this order shall be construed according to the laws of the State of Alabama, without regard to its choice of law provision, and all disputes arising out of this order shall be exclusively resolved in the federal and state courts located in Morgan County, Alabama, and Seller hereby consents and submits to the jurisdiction of such courts. THIS ORDER SHALL BE GOVERNED, CONSTRUED AND ENFORCED UNDER THE LAW OF THE STATE OF ALABAMA INCLUDING THE UNIFORM COMMERCIAL CODE IN FORCE ON THE INITIAL DATE OF THE AGREEMENT (“UCC”), EXCEPT AS PROVIDED HEREIN. The U.S. Convention on the International Sales of Goods shall not apply. Any services to be provided hereunder, whether or not they are otherwise ancillary to and part of a sale of goods (as separate units), shall be considered ancillary to a sale of goods and the UCC shall apply to all goods and services to be provided hereunder. THE COURTS OF MORGAN COUNTY, ALABAMA SHALL HAVE EXCLUSIVE JURISDICTION OVER THE PARTIES AND THE CLAIMS ARISING UNDER OR RELATED TO THIS ORDER. The parties stipulate to the convenience of such courts in general, as to all litigation. Any declaration of unenforceability of a provision shall be as narrow as possible and shall not affect the enforceability of the other provisions. Neither this order, nor any monies due or to become due hereunder, may be assigned by Seller to any third party without the prior written consent of Buyer. Buyer’s failure to insist on performance of any of the items and/or conditions contained in this order or to exercise any right or privilege hereunder, or Buyer’s waiver of any breach hereunder shall not thereafter constitute a waiver of any other terms, conditions, rights, privileges or future breach hereunder. This order and the documents referenced herein constitute the entire agreement of the parties with respect to the subject matter hereof and supercedes any and all prior agreements, negotiations, proposals and discussions between the parties. No additional or inconsistent terms or conditions in any of Seller’s documents will be binding on Buyer unless specifically referenced herein.
23. Payment terms shall be as specified in the order. Buyer shall have the right to set off against any payments due or at issue under this order or under any order between Buyer and Seller an amount sufficient to reimburse Buyer for any loss, damage, expense, cost or liability relating to or arising out of Seller’s failure to comply with any requirements of this order or these Terms and Conditions.
24. Buyer’s remedies set forth herein shall be cumulative and in addition to any remedies available at law or in equity.