These General Terms and Conditions of Sale and Delivery (these “Terms”) are applicable to all customers (the “Purchasers” and each, individually, a “Purchaser”) of ELG Utica Alloys Inc, a New York corporation (“ELG”).
1. General provisions
1.1. ELG shall sell and deliver to Purchaser and Purchaser shall purchase and accept from 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. Purchaser will be deemed to have assented to all Terms if any part of the Products is accepted by Purchaser. If Purchaser finds any Term not acceptable, Purchaser must so notify ELG at once and must reject the Products delivered under this Agreement. Any additional or different terms or conditions contained in Purchaser's order or response hereto shall be deemed objected to by ELG and shall be of no effect. No general terms and conditions of a Purchaser shall at any time form a part of the content of any contract or agreement between the Purchaser and ELG, even if they are not further expressly rejected by ELG.
2. Quotation, conclusion of contracts, scope of delivery
2.1 No orders, quotations or negotiations are binding upon ELG until the earlier of a written Order confirmation by ELG or the delivery of the Products to the Purchaser. All verbal agreements concerning the terms of any Order are not binding until acknowledged by ELG in writing. Subsequent modifications in quantity or quality, if such are requested by Purchaser, generally will cause a modification of the quoted price. Notwithstanding any prior acceptance of an Order by ELG, ELG shall have no obligation if the Purchaser is in breach of any of its obligations hereunder, or any other agreement between the Purchaser and ELG, at the time ELG’s performance was due.
2.2. Purchaser will be deemed to have assented to all Terms if any part of the Products is accepted by Purchaser. If Purchaser finds any Term not acceptable, Purchaser must so notify ELG at once and must reject the Products delivered under this Agreement. No general terms and conditions of a Purchaser shall at any time form a part of the content of any contract or agreement between the Purchaser and ELG, even if they are not further expressly rejected by ELG.
2.3 Any documents, drawings, details of weight, samples etc. enclosed with our quotation are only determined approximately. ELG shall not be liable for minor deviations.
2.4 Estimates of cost, drawings and other documents provided by us shall remain the property of ELG. All drawings and samples shall be treated confidentially by Purchaser and must be returned to ELG after usage. They may not be made accessible to third parties without our prior consent.
2.5 Purchaser shall bear all costs associated with the cancellation or modification of the Order.
3. Quality, dimensions and weights
3.1 Quality and dimensions are determined by the relevant DIN standards resp. material numbers unless otherwise agreed. If no DIN standards or material data sheets exist, the corresponding European Norms shall apply in the absence of standards customary in the trade.
3.2 Weights shall be determined by the weighing performed by us or our supplier. The weight shall be proved by presenting the weighting certificate. If admissible by law, weights can be determined without weighing according to DIN. This shall not affect the increases and reductions (excess or short delivery of up to 10 %) customary in the steel trade.
3.3 The number of units or bundles stated in the advice of dispatch shall not be binding for goods calculated by weight. If it is not customary to weigh goods individually, the total weight of the consignment shall accordingly apply. Differences in relation to calculated individual weights shall be proportionately allocated to them.
4.1 Prices are euro prices unless otherwise stated and do not include turnover tax. This shall be invoiced separately at the respectively valid rate in accordance with respectively applicable tax provisions.
4.2 Unless otherwise agreed in writing, prices are ex works or ex our warehouse at 378 Gros Blvd., Suite 3 Herkimer 13350, New York, United States (EXW per Incoterms 2010) and do not in particular include packaging and shipping costs and freight.
5. Terms of payment, retention, set-off
5.1 Unless otherwise agreed in writing, all payments shall be due and payable within thirty (30) days of the invoice date. Purchaser shall make payments by check or wire transfer to the account indicated on the invoice without a cash discount or offset and ELG shall not be required to incur any expense to receive timely payment in full as required by this Agreement Terms of payment shall be deemed met if the amount is at our disposal within the payment deadline.
5.2 If the Purchaser fails to make payment on or before the date required, Purchaser shall pay interest to ELG at the rate of [one point five (1.5%)] percent per month or such lesser amount permitted by law. The specification or charging of interest shall not be deemed an agreement to extend credit. The right to assert additional damages is hereby explicitly reserved.
5.3 Purchaser does not enjoy a right of set-off under any circumstances. Notwithstanding the foregoing, ELG or any of its affiliated entities shall be entitled to set-off
5.4 ELG shall have the right to request the Purchaser to provide guarantees, letter of credits, securities or advance payments to an appropriate extent for our delivery.
6. Security Interest
6.1. As security for the timely payment and performance of all Purchaser’s indebtedness to ELG, Purchaser hereby grants to ELG a first priority security interest in the Products following delivery thereof to Purchaser (“Collateral”). Such Interest shall remain in force until payment in full of the entire purchase price for the Products and any other amounts due to ELG by Purchaser
6.2 If so requested by ELG, the Purchaser shall deliver to ELG, in form and substance satisfactory to ELG, and duly executed as required by ELG, financing statements and other security interest perfection documentation in form and substance satisfactory to ELG, duly filed under the UCC in all jurisdictions as may be necessary, or in ELG’s opinion, desirable, to perfect ELG’s security interest and lien in the Collateral, in order to establish, perfect, preserve and protect ELG’s security interest as a legal, valid and enforceable security interest and lien, and all property or documents of title, in cases in which possession is required for the perfection of ELG’s security interest.
7. Delivery, force majeure, delivery subject to own receipt of delivery, storage
7.1 Specified delivery times are not binding unless otherwise agreed in writing. ELG shall use its reasonable efforts to deliver the Products to Purchaser by the agreed upon date, however time shall not be of the essence. Except in cases of ELG’s willful misconduct or gross negligence, ELG shall not be liable to Purchaser for delays in delivery or damage to Products while in transit, irrespective of whether ELG or Purchaser determined the mode of transportation.
7.2. ELG shall not be liable to Purchaser 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.
7.3 When the event operating to excuse performance by ELG shall cease, this Agreement shall continue in full force until all deliveries have been completed.
7.4 If shipment is delayed at the Purchaser’s request or for reasons, for which the Purchaser is responsible, we shall have the right to store the goods, beginning upon expiry of the reasonable period set in writing or text form in the notice that the goods are ready for shipment, at the Purchaser’s risk of loss and deterioration of the goods, and to invoice the costs incurred for this at zero point five percent (0.5 %) of the net invoice amount of the stored goods for each full week or part thereof (up to a maximum amount of 10 % of the net invoice amount for the stored goods). The stored goods shall only be insured at the Purchaser’s specific request. This shall not affect the assertion of further rights. The Purchaser shall have the right to prove that no costs or considerably lower costs were incurred.
8.1 The Purchaser shall monitor incoming goods with state-of-the-art radioactivity measuring devices before the material is mixed with material from other suppliers.
8.2. If the Purchaser determines that relevant limit values are exceeded, the Purchaser shall notify us immediately in writing and give us the opportunity to carry out our own measurements. If our measuring confirms that relevant limit values are exceeded, we shall assume the costs of this measuring and take back the goods in question at our expense. The requirements of para. 10 and 11 below shall furthermore apply.
9. Passing of risk
9.1 The risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser upon the delivery item being handed over by us to the forwarding agent, carrier or third parties otherwise appointed to handle the shipment. This shall also apply if partial deliveries are made or we have taken over other services (e.g. shipment or installation).
9.2 If shipment is delayed due to circumstances for which the Purchaser is responsible or the shipment is sent at the Purchaser’s request at a date which is later than the agreed delivery date, the risk shall pass to the Purchaser from the date on which the notice is sent stating that the delivery is ready for shipment for the period of the delay. We shall be obliged at the Purchaser’s request and expense to take out the insurances requested by the Purchaser.
9.3 Deliveries shall not be insured against theft, breakage, transport and fire damage without specific request by the Purchaser. If the Purchaser requests the conclusion of an insurance policy, this shall be concluded at the Purchaser’s expense. The Purchaser shall provide any cooperation required.
10. Claims for defects
10.1 The Purchaser shall inspect the goods immediately upon receipt if this is expedient in the ordinary course of business and, if a defect is found, shall notify us immediately in writing. Subsequent communications or negotiations following any notices of defects shall not constitute our waiver of the objection of ELG that the notice was not in due time, unfounded in fact or otherwise insufficient.
10.2 If the Purchaser fails to provide this notice, the goods shall be deemed approved unless it is a defect which could not be detected in the course of a normal inspection.
10.3 Obvious damages sustained during transport or other defects recognisable already at the time of delivery must also be confirmed by the deliverer’s signature on the respective transport document when delivery is accepted. The Purchaser shall ensure that a corresponding confirmation is provided.
11. Limitation of Liability
11.1. IN NO EVENT SHALL ELG BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL OR USE, INCURRED BY PURCHASER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR IMPOSED BY STATUTE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ELG’S LIABILITY FOR DAMAGES ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS. IT IS AGREED AND ACKNOWLEDGED THAT THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN ELG AND PURCHASER, THAT ELG’S PRICING REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR THIS ALLOCATION AND LIMITATION OF LIABILITY, ELG WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
11.2 IN JURISDICTIONS THAT LIMIT THE SCOPE OF OR PRECLUDE LIMITATIONS OR EXCLUSION OF REMEDIES OR DAMAGES, OR OF LIABILITY, SUCH AS LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED, THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. PURCHASER MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE, COUNTRY OR OTHER JURISDICTION.
12. Legal Compliance / Export control / Product approval / Import regulations
12.1 Upon receipt of the Products, Purchaser shall follow all applicable U.S. federal, state and local statutes, regulations and rules affecting the Products and the handling, marketing and sale of the same.
12.2 The export of Products by the Purchaser may be subject to authorisation to U.S. Export control laws and regulations, including, without limitation, the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR). The Purchaser itself shall be responsible to strictly comply with the relevant export regulations and embargos for these Products, if any, if the Purchaser exports the products supplied by us or has them exported.
12.3 The Purchaser shall in check and ensure, and, on request, provide evidence to us that
- the goods provided are not intended for use in armaments, nuclear facilities or weapon technology;
- no companies and persons specified on the US Denied Persons List (DPL) are supplied with original US goods, US software and US technology;
- no companies and persons specified on the US Warning List, US Entity List or US Specially Designated Nationals List are supplied with original US products without relevant authorisation;
- no companies and persons are supplied who are specified on the List of Specially Designated Terrorists, Foreign Terrorist Organizations, Specially Designated Global Terrorists or the EU Terrorist List or other relevant negative lists for export controls;
12.4 Goods supplied by us may only be accessed and used if the above-mentioned checks and assurances have been carried out resp. provided by the Purchaser; otherwise the Purchaser must refrain from carrying out the intended export and we shall not be obliged to perform.
12.5 Where Products supplied by ELG are forwarded on to third parties, the Purchaser shall pass on the obligations set forth above in 12.1-12.4 to such third parties, and shall notify such third parties of such legal requirements.
12.7 The Purchaser shall indemnify and hold-harmless ELG against all damages and expenses resulting from the negligent breach of the foregoing obligations pursuant to Sections 12.1-12.6 hereof.
13. Final provisions
13.1 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 Purchaser, 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.
13.2 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.
13.3 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.
13.4 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.
13.5 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.
13.6 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.