These General Terms and Conditions of Purchase (these “Terms”) are applicable to all suppliers (the “Suppliers” and each, individually, a “Supplier”) of ELG Utica Alloys Inc, a New York corporation (“ELG”).
1.1 ELG shall purchase from Supplier, and Supplier shall deliver to ELG, the products (herein, the “Products”) described on or in any confirmed order (the “Order”), pursuant to the terms and conditions of the Order and those specified below, which taken together shall constitute the entire agreement between Company and Customer regarding the Products (herein, this “Agreement”).
1.2. No other terms or conditions shall be of any effect unless otherwise specifically agreed to by ELG in a separate written agreement duly signed by an officer of ELG. Supplier will be deemed to have assented to all Terms if any part of the Products is accepted by ELG. If Supplier finds any Term not acceptable, Supplier must so notify ELG. Any additional or different terms or conditions contained in Supplier’s response hereto shall be deemed objected to by ELG and shall be of no effect. No general terms and conditions of a Supplier shall at any time form a part of the content of any contract or agreement between the Supplier and ELG, even if they are not further expressly rejected by ELG.
1.3 Our Terms and Conditions of Purchase shall also apply to all deliveries and services by the Supplier to us in the future until our new Terms and Conditions of Purchase apply.
2. Conclusion of contracts and amendments of contracts, prices
2.1 Only signed and written Order confirmations by ELG shall be binding upon ELG. Verbal agreements prior to or upon conclusion of the contract shall only be valid when confirmed in writing by ELG’s Purchasing Department through Order confirmations.
2.2 The contract shall be binding upon Supplier unless the Supplier objects the Order confirmation within five (5) calendar days of receipt of the Order confirmation. The Supplier shall not be required to countersign/return the Order confirmation.
2.3 The agreed upon prices are fixed prices and include any and all charges related to Supplier’s Purchase. Unless specifically agreed upon, prices shall be Delivered Duty Paid (DDP pursuant to Incoterms 2010) including packaging.
3. Delivery, passing of risk
3.1 Any deviations from the agreed upon quality, quantity, specifications and other terms of the Order shall only be permitted with ELG’s prior written consent.
3.2 he Order date, contact information and Order reference number (purchase order number) must be indicated on all shipping documents (delivery note, consignment notes etc.), all invoices and all correspondence with ELG.
3.3 Agreed dates and delivery periods are binding, and time shall be of the essence thereof. Compliance with a delivery date or delivery period shall be determined by receipt of the Products by ELG. In the event a certain calendar week is agreed upon as delivery date, the last date shall be Friday of that week. In the absence of an express agreement, the goods shall be delivered to our place of business.
3.4 In the event, the Supplier becomes aware of, or anticipates difficulties regarding compliance with the delivery date or similar circumstances which could prevent the Supplier from supplying on schedule or supplying in the agreed quality or quantity, the Supplier shall notify ELG’s Purchasing Department immediately in writing.
3.5 Acceptance of a late delivery or service without reservation of rights shall not constitute a waiver of claims due to the late delivery or service. This shall also apply in the event any payment for the delivery or service in question has been made in full.
3.6 ELG shall only accept delivery of the quantities or numbers of Products ordered. Excess delivery or short deliveries shall only be permitted if previously agreed with us or if they are reasonable for us.
3.7 Values determined by us during the incoming goods inspection shall be decisive for numbers of items, weights and dimensions unless otherwise proved.
3.8 Goods shall be appropriately packed to ensure that transport damages or transport losses are prevented. Only environment-friendly, non-toxic, easily recyclable packaging materials may be used. Reuse systems are to be preferred.
3.9 The Supplier shall provide any freight forwarders engaged with shipping documents to be handed over at the place of destination which indicate the quality of the goods supplied, the quantity and number on the order confirmation. Where different types are supplied, a loading list must be enclosed. If one or several of these details are omitted, we shall not assume any liability for any reduction in valuation and billing arising therefrom.
3.10 The combination of different types of goods shall only be permitted on the basis of a specific written agreement. Any resulting sorting costs incurred shall be borne by the Supplier.
3.11 The Supplier shall bear the risk of accidental loss (passing of risk), unless otherwise agreed, until acceptance of the goods by ourselves or our representative at the place where the goods are to be delivered according to the Order.
4. Force majeure
4.1 ELG shall not be liable to Supplier or any other person for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, and, except as otherwise set forth in this Agreement, acts or regulations or priorities of the federal, state or local governments.
4.2 When the event operating to excuse performance by Supplier shall cease, this Agreement shall continue in full force until all deliveries have been completed.
5. Notice of dispatch and invoice
Supplier shall use and refer to the information in ELG’s Orders and call-offs for delivery. One copy of the complete and valid invoice shall be addressed to the respectively printed address, indicating the invoice numbers and other identifiers. It may not be enclosed with the shipments.
6. Terms of payment
6.1 Unless otherwise specifically agreed, we shall pay invoices either within two (2) weeks days less a three percent (3%) cash discount, or within thirty (30) days without deduction following receipt of both the invoice and the Products. Payment shall be subject to verification of the invoice.
6.2 Invoices that are not correctly submitted (i.e. accurate, complete, correct and auditable) shall be deemed received by us only when correct. The term of payment for invoices shall begin upon receipt of a complete, valid, correct and auditable invoice. In the event a delivery/service is defective, we shall have the right to withhold a proportionate amount of the payment until proper performance.
6.3 ELG shall be entitled to set-off any other of its or its affiliated entities’ claims from Supplier’s claim for payment.
7. Guarantee, warranty, product liability
7.1 The Supplier warrants that all deliveries/services comply with all applicable county, state and federal laws, statutes, regulations and governmental orders and comply with the relevant standards set by industry associations, including, without limitation the Dodd–Frank Wall Street Reform and Consumer Protection Act, the Export Control Act and the International Traffic in Arms Regulations (ITAR). Deviations from these laws, regulations or standards are only permissible following ELG’s prior written consent. Such consent shall not limit or waive any claims based upon Supplier’s liability for Product defects.
7.2 Supplier warrants for a period of thirty-six (36) months following delivery, that the Products will be free from defects in materials and workmanship under normal use, and will conform to Supplier’s specifications of the Products. Supplier further warrants that the Products are merchantable and fit for the purpose intended.
7.3 ELG shall examine the Products within a reasonable period following delivery for any defects in quality or deviations in quantity to the extent reasonably and technically possible. ELG shall notify the Supplier of obvious defects in the delivery/service immediately in writing as soon as they are determined according to conditions in the normal course of business but at the latest within fourteen (14) calendar days of receipt of the delivery at our company. ELG shall give notice of hidden defects immediately but at the latest within fourteen (14) days of their detection.
7.4 In the event of defective partial deliveries, ELG shall also have the right, after unsuccessful supplementary performance, to reject the Products delivered in their entirety (e.g. because the delivery cannot be used as a whole or is it more economical for us to order the goods again as whole) and the defect is more than just negligible.
7.5 Supplier shall indemnify, hold harmless, and, at ELG’s written request, defend ELG, its affiliates, offices, directors and shareholders against any and all claims, losses, damages, liabilities, costs, expenses, including, without limitation claims based upon (1) personal injury, death, or damage to property caused by a defect in a Product or the failure to warn with respect to a Product (2) intellectual property infringement by a product (3) non-compliance of a Product with applicable laws and regulations and (4) any other failure to perform with the terms and conditions of this Agreement. The foregoing obligation shall include claims for reasonable attorneys’ fees and other costs of legal defense.
7.6 The Supplier shall take out quality assurance which is appropriate in nature and scope and corresponds to state-of-the-art technology and shall provide us with proof of this upon request. Upon ELG’s request, the Supplier shall conclude a corresponding quality assurance agreement with us if we deem this necessary. The Supplier shall furthermore insure itself for an adequate amount against all risks arising from product liability including the risk of recall and upon request submit the insurance policy to us for inspection.
8. Radioactivity, danger of explosion, hollow bodies
8.1 The Supplier represents and warrants that all Products supplied by it are free from substances which have been exposed to radiation, parts suspected of containing explosive material and hollow bodies.
8.2 The Supplier furthermore warrants that all Products have been examined for radioactivity using measuring devices which conform with state-of-the-art technology. The Supplier supplies exclusively Products where there were no indications, within the scope of the measuring accuracy of the measuring equipment, of ionising radiation above naturally occurring background radiation. The limits of the strictest legal regulations resp. directives (inter alia Directive 96/29 EURATOM) valid in Germany must be complied with.
8.3 If radioactively contaminated material resp. other defects pursuant to para. 8.1 above occur, the Supplier shall be liable for all consequential damages such as in particular lost profit, contractual penalties and penalties. The Supplier shall also be liable for consequential damages due to production stoppages and/or plant closure, personal injuries and their consequential costs as well as the costs for disposing of the contaminated material.
9. Property rights
9.1 The Supplier guarantees and warrants that all deliveries are free of third-party property rights, liens and security interests and that the delivery and use of the delivery items does not infringe patents, licences or other third-party property rights.
9.2 ELG shall have the right, at the Supplier’s expense, to take all measures to remove to third-party property rights, liens and security interests and obtain approval from third party beneficiaries of such rights to use the respective Product.
9.3 The Supplier guarantees and warrants that all deliveries are in accordance with U.S. import laws and regulations and have been obtained in compliance with U.S. Customs regulations and U.S. rules of origin, including, without limitation, import regulations promulgated by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury.
10. Quality and documentation
10.1 The Supplier shall continuously verify the quality of the delivery item. The Supplier shall notify us of any potential improvements immediately.
10.2 If minimum and/or maximum values of parameters are specified in a purchase order, these values may not be exceeded or fall short of the minimum values in any area of the Product. This shall be assured and documented by suitable test and measurement procedures. We shall have the right to request the notification of the results of such verification in writing at any time and without additional costs.
10.3 Product-specific and/or technical documentation, certificates of conformity and other documents, certificates and operating instructions required for the Product and the marking of the Products and/or their packaging shall form part of the scope of delivery without separate charge.
10.4 The Supplier shall ensure that the delivery items can be traced exactly through batches.
11. Provision of Materials, Tools and Packaging by ELG
Materials, substances, tools, parts, containers and special packaging provided by ELG shall remain ELG’s property and may only be used for their intended purpose.
12. Documents and Confidentiality
All business, technical or product-related information, including, without limitation, calculation data, manufacturing specifications, internal production information and data, of whatever kind, made accessible by ELG to the Supplier, including other development or manufacturing features to be taken from any objects, documents or data provided shall not be disclosed to third parties and may only be made available to those persons at the Supplier's own company who have a need to know and must necessarily be involved in their use for the purpose of the delivery or service to us. We shall retain the exclusive title to such items. Notwithstanding the foregoing, excluded from the above restrictions is any disclosure of confidential matters (i) that can be demonstrated to have been in the public domain prior to any disclosure of such information, whether directly or indirectly; (ii) that becomes part of the public domain by publication or otherwise through no fault or negligence on the part of ELG; or (iii) that is disclosed pursuant to a requirement of a governmental agency or as is required by operation of law. Supplier shall instruct its employees and its independent subcontractors to adhere to the terms and conditions of this provision.
13. Compliance with Employment-related Laws
13.1 The Supplier shall ensure that its employees or the employees of its sub-contractors are employed in compliance with all applicable employment-related laws and regulations, including without limitation, workers’ compensation laws, prohibition of child labour etc.
13.2 The Supplier shall indemnify and hold harmless ELG from any claims, actions, proceedings and damages based upon or resulting from non-compliance with the obligations pursuant to paragraph 13.1.
14. General provisions
14.1 Supplier may assign any obligations from this Agreement to third parties only with ELG’s written consent.
14.2 Any controversy or claim arising out of or relating to this Agreement, or the negotiation or breach thereof, shall be exclusively settled by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The award shall be final and binding. Judgment upon the award rendered by the arbitrator or the arbitrators may be entered in any court having jurisdiction thereof. The arbitration shall be held in New York, New York, shall be conducted in the English language, and shall be conducted (i) if the amount in dispute is less than two hundred fifty thousand U.S. Dollars ($250,000), before a single arbitrator mutually agreeable to ELG and Supplier, or if no agreement can be reached, then selected by the AAA, or (ii) of the amount in dispute is two hundred fifty thousand U.S. Dollars ($250,000) or more, before three (3) arbitrators. The arbitrator(s) shall make detailed findings of fact and law in writing in support of his, her or their decision, and shall award reimbursement of attorney’s fees and other costs of arbitration to the prevailing party, in such manner as the arbitrator shall deem appropriate. In addition, the losing party shall reimburse the prevailing party for reasonable attorneys’ fees and disbursements, the costs of the arbitration (including but not limited to the fees and expenses of the arbitrator and expert witnesses) and the costs incurred by the prevailing party in successfully seeking any preliminary equitable relief or judicially enforcing any arbitration award.
14.3 This Agreement shall be governed by and construed in accordance with the law of the State of New York, without giving effect to principles of conflict of laws thereof or the UN Convention on Contracts for the International Sale of Goods of 1980.
14.4 If any provision contained in this Agreement is held to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties’ respective rights and obligations hereunder.
14.5 In the event of a violation or threatened violation of ELG’s proprietary rights, ELG shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that ELG would suffer irreparable harm.
14.6 The parties hereto are independent contractors and nothing in this Agreement will be construed as creating a joint venture, employment or agency relationship between the parties.
14.7 This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements between them, whether oral or written, of any nature whatsoever with respect to the subject matter hereof. This Agreement is binding upon the parties hereto, their successors and permitted assigns.