GENERAL CONDITIONS OF SALE
The following terms and conditions of sale are hereby incorporated into the Sales Agreement (the "Sales Confirmation") provided to you (the "Purchaser") by International Metal Supply, LLC, a Delaware limited liability company ("IMS"), with respect to the purchase of the products identified therein (the "Products"). Your purchase of the Products identified in the Sales Confirmation are subject to the following:
1. General. These General Conditions OF SALE, together with any nonconflicting provisions in IMS' Sales Confirmation (COLLECTIVELY, the "AGREEMENT"), are intended by the parties as the final expression, and contain the complete and exclusive statement, of the terms and conditions UPON WHICH IMS SHALL SELL TO PURCHASER, AND THE PURCHASER SHALL PURCHASE FROM IMS, THE PRODUCTS, AND supersedE all previous or simultaneous communications either oral or written. IMS' Sales Confirmation are offers which may only be accepted in full. If Purchaser's order or other form states terms additional to or different from those set forth herein, this writing shall be deemed notification of objection to such additional or different terms. This Agreement, in particular the terms contained on the face of the Sales Confirmation, is conditioned on Purchaser's acceptance and assent to the terms and conditions contained herein. Purchaser's acceptance of this Agreement shall be deemed to have occurred at the earliest of (i) Purchaser's acceptance of the Sales Confirmation, (ii) 7 days from the date specified on IMS' Sales Confirmation form unless written objection from the Purchaser is received by IMS during such 7 day period, or (iii) Purchaser's acceptance of delivery of, or payment for, the Products irrespective of any terms added or deleted by Purchaser. Where Products are being ordered or delivered in installments pursuant to orders, call-offs or releases submitted by the Purchaser to IMS, each order, call-off or release shall constitute a separate Agreement, subject to the terms and conditions set forth herein, and IMS may exercise any rights and remedies provided for herein with respect to a specific order, call-off or release or with respect to the entire Agreement.
2. Price. Unless otherwise expressly stated on the face of the Agreement, all prices for the Products are in US Dollars net the applicable incoterms, place of delivery or desitnation (INCOTERMS 2010) identified in the applicable Sales Confirmation, order, call-off or release, with freight and insurance for the account of the Party as per the applicable incoterms (INCOTERMS 2010). Prices do not include any duties, taxes, tariffs, or other charges ("Charges"), which Charges may be imposed upon the sale or use of the Products. All Charges paid by IMS in connection with the sale of the Products to Purchaser shall be for Purchaser's account. Any claim for exemption from Charges by Purchaser must be plainly designated on the face of the order, call-off or release submitted by Purchaser to IMS, and reflected by IMS in the Sales Confirmation, and accompanied by all required exemption certificates prior to acceptance of this Agreement by Purchaser.
3. Payment. Unless otherwise stated in the Sales Confirmation, payments are due net 30 days from the date of the Sales Confirmation, in cash via wire transfer, cheque or electronic funds transfer in accordance with the instructions provided by IMS, without deductions or set-off. In the event that IMS determines, in its sole and absolute discretion, at any time prior to or following commencement of its performance hereunder that the Purchaser is not credit worthy, credit insurance cover in respect of the Purchaser has been cancelled (or IMS is unable to obtain credit insurance cover, or such credit insurance cover has been reduced by IMS' insurer) or the Purchaser is unable to pay its debts as they fall due, IMS may (i) require payments to be made by cash in advance of shipment, or (ii) refuse shipment of the Products that are the subject of the Sales Confirmation and terminate this Agreement without any liability to the Purchaser. If payment is not made when due, IMS may suspend all future delivery or other performance with respect to Purchaser, whether under this Agreement or any other order, without liability or penalty. In addition to all other sums payable hereunder, the Purchaser shall pay to IMS (i) the reasonable costs and expenses incurred by IMS in connection with all actions taken to enforce collection or to preserve and protect IMS' rights hereunder, whether by legal proceedings or otherwise, including without limitation reasonable attorneys' fees, court costs and other expenses, and (ii) interest on all amounts unpaid after the payment date therefor, charged at the monthly rate of 4% or the highest rate permitted by law, whichever is lower.
4. Title and Security Interest. As collateral security for the payment of the purchase price of the Products, IMS reserves, and Purchaser hereby pledges and grants to and creates in favor of IMS, a lien on and a first priority purchase money security interest in and to all of the right, title and interest of the Purchaser in, to and under the Products (or the equivalent under Purchaser's local law) wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) from the sale thereof, until full payment is received. Purchaser agrees to sign upon request, and hereby authorizes IMS to sign on its behalf and as its attorney in fact, any documents necessary to perfect IMS's security interest. Upon resale, Purchaser agrees to take, and immediately assign to IMS, a perfected security interest in the Products. The security interest granted under this provision constitutes a purchase money security interest under the Georgia Uniform Commercial Code. The Purchaser shall keep the Products separate from any other material or products of the Purchaser or of any third parties, properly stored (at no cost to the Seller), protected and, if requested by the Seller in writing, identified by signs as the IMS' property. The Purchaser shall not be entitled to sell or otherwise dispose of the material except for its own consumption in its own production process. Upon any default or breach by Purchaser of this Agreement or any other contract or agreement between IMS and Purchaser, IMS shall be entitled to enter upon any premises where the Products are stored and may repossess same. The Purchaser shall indemnify IMS against any loss or damage to the Products until the consigned Products are withdrawn by the Purchaser for its own consumption whether or not caused by any risks against which the material may be insured. The Purchaser may not return the Products for credit or any other consideration.
5. Shipment; Delivery; Force Majeure. Shipment and delivery of the Products shall be basis the applicable INCOTERMS 2010 stated in the Sales Confirmation. All shipment, insurance or similar charges shall be borne by the relevant party in accordance with INCOTERMS 2010. Delivery of the Products to the first carrier shall constitute delivery by IMS to Purchaser, whereupon risk of loss in the Products shall have been transferred to Purchaser, and all claims for loss or damage in transit or for non-delivery shall be made by Purchaser against the carrier. At IMS' option, Products may be shipped in advance of the requested shipment date or in installments. All delivery information (including time for shipment) is approximate and the Purchaser acknowledges that the delivery date is not of the essence of this Agreement. IMS' sole responsibility is to use reasonable commercial efforts to meet specified shipment dates. Purchaser expressly absolves IMS from any liability for any loss or damage resulting from a failure to deliver or delays in delivery caused by any conditions related to, or caused by, failure to process or inaccurate processing of time-sensitive information and/or mechanisms, a labor dispute (e.g. strike, slowdown or lockout), fire, flood, governmental act or regulation (e.g. denial of export licenses, sanctions), riot, inability to obtain supplies or shipping space, plant breakdown, power failure, delay or interruption of carriers, accidents, acts of God or other causes beyond IMS' control. notwithstanding anything to the contrary contained herein, IN NO EVENT SHALL IMS be liable for any damage or penalties whatsoever, whether indirect, incidental, special or consequential, resulting from IMS' failure to deliver or delay in delivery for any reason. Purchaser acknowledges and agrees that the delivered quantity of the Products may vary by +/- 5% of the quantity of the Products specified on the Sales Confirmation, and such overages or shortages are acceptable and shall not permit Purchaser to refuse delivery of the Products, claim that non-conforming Products have been delivered, terminate the Agreement or set-off amounts invoiced by IMS to Purchaser for the Products. IMS shall provide to the Purchaser written details of the weight of the vehicle transporting the Product at a weighbridge at the warehouse where the Products are stored by or on behalf of IMS. The weight of the delivered quantity of the Product to the Purchaser shall be taken to be the difference between the “gross” and “tare” weights of such vehicle, which, subject to Section 6 below, shall be final and binding on IMS and Purchaser. IMS' certificate as to the quality/specification and size of the Product shall be final and binding on IMS and the Purchaser.
6. Inspection. Within 5 business days of receipt, Purchaser shall have the right to inspect, weigh and analyze the Products, at Purchaser's sole cost and expense, and IMS shall have the right to be present at the conduct of such inspection or weighing. Unless Purchaser notifies IMS in writing of any nonconformities within 10 business days of receipt, Purchaser shall be deemed to have accepted the Products without qualification, and cannot, thereafter, reject any Products. Once used, Products are deemed to be fully conforming to this Agreement. If Purchaser's inspection, weighing or analysis of the Products identifies a difference of less than +/-1% in the weight of the delivered quantity of the Product as compared to the quantity identified in the Certificate of Weight delivered by IMS to Purchaser in connection with the applicable Sales Confirmation, or a discrepancy in the Cr content of the Product of up to +/-0.5% from that specified in the Sales Confirmation delivered by IMS to Purchaser in connection with the applicable Sales Confirmation, the quantity or Cr content, as applicable, identified on the Sales Confirmation shall be final and binding on Purchaser and IMS.
If, as a result of an inspection, weighing or analyzing, Purchaser believes that the delivered quantity of the Products exceeds +/-1% of the quantity advised by IMS, or exceeds +/-0.5% of Cr content from that specified in the Sales Confirmation, and Purchaser notifies IMS in writing of such issue within 10 business days after receipt of the Products, Purchaser shall give IMS' personnel such reasonable access to the location of the alleged nonconforming Products for purposes of verifying such nonconformity. If Purchaser and IMS are unable to resolve the issues identified in Purchaser's written notice within 14 business days after IMS' receipt of such written notice, Purchaser and IMS shall appoint a mutually agreed upon independent surveyor (the "Surveyor") to weigh, test and/or sample the Products to confirm whether the matters identified in the Purchaser's written notice are correct.
The Surveyor will sample, analyze and supervise the weighing of the Products in accordance with applicable ISO standards and shall present its results to both Purchaser and IMS, which, in the absence of manifest error, shall be final and binding on both Parties. In case the Surveyor has to perform its activity at the Purchaser’s premises, the Purchaser shall allow the Surveyor reasonable access to the Products as may be necessary to enable the Surveyor to conduct the representative sample. All costs pertaining to the engagement of the Surveyor shall be borne by the party whose quantity or content was furthest from the result of the Surveyor (taking into account the allowances in quantity and content specified in this Section 6). If the Surveyor’s result is the exact mean of the parties’ advised weight and/or content values, then the Surveyor's costs shall be shared equally between the parties.
7. Cancellation, Failure to Take Delivery. This Agreement cannot be canceled or postponed by Purchaser except with IMS' consent and upon terms that will indemnify IMS against loss. If Purchaser cancels all or part of an order for Products, Purchaser shall pay IMS the greater of an amount equal to (i) 100% of the price for such cancelled Products, or (ii) the actual and consequential damages incurred by IMS as a result of such cancellation, including without limitation IMS' anticipated profit and expenses already incurred by IMS and any costs and expenses incurred in transporting the Products to a different IMS location or warehouse. If Purchaser postpones delivery, Purchaser shall pay IMS the sum of (i) a monthly charge equal to 1 1/2% of the total price for the Products subject to such postponement, and (ii) reasonable postponement charges, including without limitation IMS' idle time, warehousing expense or costs of shipping the Products to another IMS location or warehouse.
8. Warranty; Limitation. Subject to the warranty limitation set forth in this Section 8, IMS warrants that the Products when delivered to Purchaser will substantially conform to the specifications set forth in the Sales Confirmation (subject to the allowances identified in Sections 5 and 6 above). THE WARRANTY SET FORTH IN THIS SECTION 8 IS STRICTLY LIMITED TO ITS TERMS AND IS IN LIEU OF ALL OTHER WARRANTIES, GUARANTEES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, SPECIFICALLY EXCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The foregoing warranty shall not apply, and IMS shall not be liable for a breach of such warranty, to Products that (i) have been subjected to accident or disaster, including without limitation, fire, flood, water, wind, and lightning, neglect, abuse or misuse; or (ii) are not properly stored or handled under normal conditions.
9. Remedy. Purchaser's sole and exclusive remedy, and IMS' only obligation for breach of the express warranty hereunder, shall be, at IMS' option in its sole discretion, to either (i) grant a discretionary discount to the price of the Products, or (ii) replace the unused Product which fails to satisfy the warranty in Section 8 or fails to conform to the specifications set forth in the applicable Sales Confirmation, free of charge, provided that Purchaser promptly notifies IMS of such failure within the periods specified in the Agremenet. IMS' personnel must be granted access to inspect the unused Products claimed to be defective at the site of their location or use, if access is not so granted any claim by the Purchaser shall be null and void. Purchaser acknowledges that such exclusive remedy is an essential term in the bargain represented by Purchaser's order of the Products to which this Agreement is attached and that such remedy shall, in view of the consideration paid to IMS, operate as a full satisfaction to Purchaser for any and all claims related thereto. Purchaser further acknowledges that if a court of competent jurisdiction rules this exclusive remedy does not give Purchaser the benefit of its bargain or that such exclusive remedy fails for any reason, then any such ruling with regard to such exclusive remedy or any such failure of such exclusive remedy shall not affect or modify in any way any limitation or exclusion of warranties, and all such limitations and exclusions shall continue in full force and effect.
10. Disclaimer; Limitation of Liability, Time For Claims. Purchaser agrees that IMS shall not be liable for incidental, special, INDIRECT or consequential or other similar damages, including, but not limited to, loss of profit or revenues, damage for loss of use of the Products, damage to property, claims of third parties, including personal injury or death on account of use of the Products or failure of IMS to warn against or instruct on, or adequately warn against or instruct on, the dangers of the Products or the safe and proper use of the Products, whether or not IMS has been advised of the potential for such damages. IMS' total liability hereunder from any cause whatsoever (except liability from personal injury caused by IMS' negligence), whether arising under contract, warranty, tort (including negligence), strict liability, products liability or any other theory of liability, will be limited to the lesser of Purchaser's actual damages or the price paid to IMS for the Products that are the subject of Purchaser's claim. All claims against IMS must be brought within one year after the cause of action arises, and Purchaser expressly waives any longer statute of limitations.
11. Exports; Anti-bribery / Anti-corruption Compliance. Purchaser warrants that it is and will remain in compliance with all export and reexport requirements, laws and regulations of the United States of America and any other applicable export and reexport laws and regulations. Purchaser and its representatives are in compliance with the Foreign Corrupt Practices Act of 1977, as amended ("FCPA"). Neither Purchaser nor any of its representatives has: (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity or to influence official action; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; or (iv) failed to disclose fully any contribution or payment made by Purchaser (or made by any person acting on its behalf of which purchaser is aware) that violates the FCPA.
12. Governing Law; Venue. This Agreement is made under, and for all purposes shall be construed and enforced in accordance with and governed by, the laws of the State of Georgia, excluding (i) its conflict of laws provisions and (ii) the United Nations Convention for the International Sale of Goods. All actions arising hereunder shall be instituted in the state or federal courts located in or having jurisdiction over Georgia. Purchaser hereby consents to the jurisdiction of the state and federal courts sitting in Cobb County, appoints the Secretary of State of Georgia in Atlanta as its agent for service of process and agrees to appear in an action upon written notice thereof.
13. Miscellaneous. This Agreement cannot be waived, varied, modified or amended in any manner (including subsequent conduct between the parties) except in a writing signed by IMS. Any portion determined by a court of competent jurisdiction to be invalid or unenforceable shall be struck and the remainder of this Agreement shall continue to be effective and binding. The Purchaser shall not be permitted to assign this Agreement or delegate the performance of any of its obligations hereunder without the prior written consent of IMS. This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns. IMS' failure to insist on strict performance of this Agreement or to enforce a default upon the occurrence of any single, repeated, or continuing violation of any particular term or condition hereof, shall not be considered a waiver of IMS' right to insist on strict performance of this Agreement or to enforce a default with respect to the violation of any other term or condition or, at any later time or upon any subsequent occurrence, with respect to that particular term or condition.
14. Nondisclosure. Purchaser acknowledges that the information contained on IMS' Sales Confirmation relative to the price for the Products and such other terms of sale of the Products is confidential and proprietary to IMS, and Purchaser shall not disclose any of such terms or information to any other party without the prior express written consent of IMS.