deeco metals & siltin industries inc. terms and conditions of sale

1. ANY ACCEPTANCE OF THIS OFFER IS LIMITED TO ACCEPTANCE OF THE EXPRESS TERMS AND CONDITIONS CONTAINED HEREIN AND IN ANY QUOTATION AND/OR SALES ORDER ACKNOWLEDGEMENT WHICH IS ISSUBD BY SELLER.  ANY PREVIOUS OFFERS MADE BY BUYER, WHETHER WRITTEN OR VERBAL, NOT ALREADY EXPRESSLY ACCEPTED BY SELLER IN WRITING ARE HEREBY OBJECTED TO AND REJECTED.  IN NO EVENT SHALL THIS OFFER BE DEEMED AN ACCEPTANCE OF ANY PRIOR OFFER BY BUYER.  THE TERMS AND CONDITIONS BELOW SHALL SUPERSEDE ANY PROVISIONS, TERMS AND CONDITIONS CONTAINED ON ANY CONFIRMATION OR PURCHASE ORDER, OR OTHER WRITING THE BUYER NAY GIVE OR RECEIVE, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED EXCLUSIVELY BY THE PROVISIONS, TERMS AND CONDITIONS HEREOF.  NO CONTRARY, ADDITIONAL OR DIFFERENT PROVISIONS, TERMS OR CONDITIONS SHALL BE BINDING ON THE SELLER UNLESS ACCEPTED BY THE SELLER IN A WRITING WHICH MAKES SPECIFIC REFERENCE TO THIS OFFER AND ACKNOWLEDGES SUCH MODIFICATIONS OR REVISIONS.  ONCE THIS OFFER IS ACCEPTED BY BUYER, THIS ORDER MAY BE CANCELED ONLY WITH SELLER'S WRITTEN CONSENT AND UPON TERMS THAT WILL INDEMNIFY SELLER AGAINST ANY AND ALL LOSS.  SELLER'S COMMENCEMENT TO PROCURE THE GOODS OR SHIPMENT OF THE GOODS WHICH ARE THE SUBJECT OF THIS OFFER SHALL BE DEEMED AN EFFECTIVE MODE OF ACCEPTANCE OF THIS SALES ORDER BY BUYER, UNLESS BUYER, WITHIN A COMMERCIALLY REASONABLE TIME AFTER BUYER BECOMES AWARE, OR SHOULD HAVE BECOME AWARE, OF SELLER'S COMMENCEMENT TO PROCURE THE GOODS HEREIN OR OF SHIPMENT OF SUCH GOODS NOTIFIES SELLER IN WRITING THAT BUYER OBJECTS TO AND REJECTS THIS OFFER.  THIS OFFER IS SUBJECT TO SELLER'S CREDIT APPROVAL OF BUYER.

2. Prices are subject to change without notice and orders calling for future delivery will be billed according to the price in effect at time of delivery.  Unless expressly provided otherwise, the prices referred to herein shall not include any charges for freight, transportation custom duties, tariffs, import or other taxes, insurance or any other charges.  Such charges and/or taxes shall be the sole responsibility and shall be borne exclusively by Buyer.

3. All invoices submitted by Seller to Buyer shall be payable net within 30 days.   If payment is not received within the prescribed period, interest shall accrue on any unpaid balance from its due date until payment is made at the rate of 1.5% per month. Seller shall retain a security interest in the goods shipped to Buyer until the entire balance of the price of such goods and all other monies then due are paid in full.   In the event Buyer defaults on any payment or makes an assignment for the benefit of creditors, or if a preceding in insolvency or bankruptcy is initiated by or against the Buyer, whether voluntary or involuntary, Seller shall have the right to withhold shipments, in whole or in part, and to recall goods in transit, retake same, and remove and/or repossess goods which may be stored with the seller for the Buyers account, without the necessity of taking any proceedings and to tale such other action as may be necessary to protect its security Interest, including any other remedies Seller may have by operation of law or otherwise  All expenses including court and reasonable attorneys' fees that are incurred in the enforcement of this agreement will be the sole responsibility of Buyer.

4. All goods shall be shipped F.O.B. Seller’s point of shipment.  Risk of loss shall pass to Buyer upon delivery to the first carrier or shipper.  Seller shall not be responsible for any delay or for any consequence of any delay in the delivery of the goods, when such delay is due to strike, fire, and government action, the fault of Sellers source of supply or of any transportation company, or any other cause or causes beyond the reasonable control of the seller.

5. Seller warrants that the goods supplied hereunder shall conform at time of delivery to the written specifications accepted by the Seller, if any, subject to Seller’s standard tolerance for variation.  SELLER'S SOLE LIABILITY AND BUYER'S EXCLUSIVE REMEDY FOR A BREACH OF THE WARRANTY SHALL BE, AT SELLER'S OPTION, CREDIT OR REPLACEMENT OF THE NONCONFORMING GOODS.   FURTHERMORE, SUCH WARRANTY SHALL BE NULL AND VOID AND SHALL NOT APPLY TO ANY GOODS WHICH ARE (i) ALTERED, MODIFIED, DAMAGED REPAIRED, ABUSED OR MISUSED (WHETHER INTENTIONALLY OR ACCIDENTALLY) BY ANY PERSON OTHER THAN SELLER OR ITS AGENTS OR (ii) NOTWITHSTANDING ITS NONCONFORMITY, ARE USED OR OTHERWISE ACCEPTED BY BUYER OR BUYER WAIVES ITS CLAIM FOR REJECTION UNDER THE PROVISIONS OF THE SALES ORDER.  THE FOREGOING WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, AND SELLER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE AND/OR PARTICULAR PURPOSE.  SELLER SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR SPECIAL, INDIRECT, PUNITIVE OR CONSEOUENTIAL DAMAGES OF ANY NATURE WHATSOEVER. SELLER SHALL NOT BE RESPONSIBLE FOR THE RESULTS OF ANY TECHNICAL ADVICE IN CONNECTION WITH THE DESIGN, INSTALLATION OR USE OF THE GOODS SOLD HEREUNDER.

6. Buyer may reject any shipment of any goods to the extent such shipment does not conform in any material respect with the written specifications accepted by Seller, if any.  In order to reject a shipment, Buyer must give written notice to Seller within 10 days after receipt of the shipment.   If notice is not received within the prescribed period, then Buyer shall be determined to have accepted the shipment of the goods.  If notice is received and Seller confirms the nonconformity, Seller shall, at its sole option, either replace the nonconforming goods with conforming goods or credit to Buyer the purchase price therefore.

7. Buyer shall indemnify, defend and hold Seller harmless from and against any and all loss, cost, liability and expense (including, without limitation, reasonable attorneys' fees and costs) incurred and/or paid by Seller resulting from or arising out of or in connection with (a) any representation or warranty made to any third party by Buyer, its affiliates, agents, distributors or employees which is not expressly authorized by Seller in writing, and (b) any claims asserted or actions filed against Seller by a third party, including claims for personal injury or property damage, except if liability for such claims or actions arises from the willful misconduct of Seller.  Buyer agrees to carry and maintain, at all times after this sale products liability insurance in an amount of not less than $1,000,000 to cover products liability claims with respect to all semi finished or finished products in which the goods subject to this sales order may hereinafter form a part of, and will if requested to do, name Seller as additional insured and furnish Seller with proper evidence of such coverage.

8. This agreement and the performance of any obligations hereunder, may not be assigned by Buyer without the prior written consent of Seller.  If any part of this agreement shall be held unenforceable, the remainder of the agreement shall nevertheless remain in full force and effect. This agreement shall be construed in accordance with the laws of the State of New Jersey as if the agreement was performed wholly within the State of New Jersey and without regard to its conflict of law principles. Buyer hereby consents to the jurisdiction of the courts of the State of New Jersey and the Federal District Court for the District of New Jersey.  Buyer shall comply with all laws, regulations and/or other requirements of local, state and federal governments in connection with its performance hereunder.

9. These terms and conditions embody the final, exclusive, and complete expression of agreement of the parties hereto, and may not be modified orally but only in a writing duly executed by both parties.