Any order by a person (“Buyer”) for goods (an “Order”), if accepted, is accepted subject to these Terms and Conditions of Sale (“T&Cs”), which are incorporated into any acceptance, acknowledgement, invoice and other document issued by Primus Metals, Inc. d/b/a Primus Aero (“Seller”) in response to such Order (each a “Response”), and any reference thereto shall include these T&Cs. No waiver, alteration, or modification of these T&Cs shall be valid unless expressly agreed to in writing by Seller and specified as superseding these T&C’s. The T&Cs constitute the entire agreement between the parties and any different, additional or conflicting terms or conditions set forth in Buyer’s purchase order or any other document issued by Buyer are expressly objected to by Seller and the terms hereof, including those contained in the applicable Response, shall exclusively govern the purchase and sale of the goods covered by the Response unless there is another manually signed agreement between the parties, which shall control to the extent there is a conflict between the terms of such agreement and these T&Cs. For avoidance of doubt, it is the intent of the parties that Section 2-207 of the Uniform Commercial Code concerning the Battle of the Forms shall not apply to the performance of any Order by Buyer or Seller or to the sale of goods from Seller to Buyer. In addition, it is the intent of the parties that provisions of neither the Uniform Commercial Code nor the United Nations Convention on Contracts for the International Sale of Goods shall form any part of the contract between the parties. These T&Cs shall apply to all orders and releases and are the exclusive terms governing the relationship of the parties. Seller is not willing to contract with Buyer except in accordance with these T&Cs. Buyer’s acceptance of these T&Cs and Seller’s performance of the Order (in whole or in part) are expressly limited to, and conditioned upon, Buyer’s acceptance of these T&Cs which may not be changed or waived except in a writing signed by both parties. Without limitation on any other means by which Buyer may signify its acceptance of these T&Cs, Buyer’s performance hereunder, in whole or in part; acceptance of any Supplier submission relating to goods or tooling; acceptance of tooling concepts or designs; issuance of releases or delivery schedules; acceptance of any goods; payment for any goods; or any other conduct recognizing the existence of a contract or business relationship with Seller, constitutes Buyer’s acceptance of these T&Cs. Without limitation on the foregoing, Seller’s performance on an Order shall not be considered acceptance of any counter-offer or terms provided by Buyer, and Seller will not be bound by, hereby objects to, and rejects, any additional provision or any provision at variance with these T&Cs that may appear in Buyer’s purchase order, standard terms and conditions, including terms and conditions referenced in Buyer’s purchase order, acknowledgments, form agreements, supplier or quality manuals, notices or in any other document or communication from Buyer to Seller, or any updates or amendments thereto, whether Seller has been notified of such provisions, or however such provision may be communicated or referenced (including any provisions contained on Buyer’s website, EDI platforms, electronic mail, or any other medium), and whether appearing in hard copy, electronic, or graphic form, or with respect to any online bids or online quote packages that purport to require acceptance of terms and conditions in order to access the bid or quote documents. No email, EDI, on-line access to bids or quote packages, or website communications or exchanges shall constitute a modification of, or objection to, these T&C’s or any other part of Seller’s offer to sell goods.
1. Payment Terms.
2% discount if paid within 10 days from the date of invoice and net 30 days from the date of invoice if not paid within the 10 day discount period. Buyer agrees that any overdue amounts may be subject to a late payment charge on the overdue balance of 1.5% per month or such lesser amount as is the maximum rate of interest allowed by law. Buyer shall pay any and all reasonable costs, including collection agency and attorneys’ fees, incurred by Seller while collecting any delinquent balance. Payment for the sale of goods shall not be subject to offset, deduction or back charges by Buyer, unless such offset, deduction or back charge was a sole, direct and proximate result of gross negligence on the part of Seller and is expressly accepted in writing by an authorized representative of Seller. Any sums that have been deducted by Buyer in violation of this clause shall be considered overdue and are subject to the above late payment charge.
The price shall be the Seller’s listed or quoted price, which is subject to change without notice. The goods are invoiced at prices in effect on date of shipment.
3. Delivery Terms.
All goods are sold Ex-Works at Seller’s facility (“Shipping Point”) Incoterms 2000. Seller’s obligation to deliver the goods shall be fulfilled when it has delivered the same in good condition to a carrier at the Shipping Point. Unless otherwise specified, Buyer shall pay or reimburse Seller for all transportation, freight, insurance, loading, packaging and handling charges, taxes, duties, fees, storage, and all other charges applicable to the goods. Buyer shall not be responsible for any taxes based on Seller’s income. Buyer shall insure each shipment of goods with a reputable insurer for 110% of the full invoice value of such shipment and shall name Seller as an additional insured. Dates for delivery (including any Buyer “need” or “request” or “required” dates) are estimates made by Buyer and Seller, are not guarantees, and are determined from the date of Seller’s receipt of a written purchase order. In no event shall Seller be responsible for penalties, costs, expense, obligations, or damages of any kind if the Buyer requested delivery, need, or required date(s) are not met. Overtime and other expenses incurred to hasten delivery at Buyer’s request or demand shall be added to the quoted prices and paid by Buyer. Shipment of goods that are available for delivery can be deferred beyond the date for delivery only with Seller’s written consent.
Seller retains a vendor’s lien on all goods sold to Buyer until such goods are paid for in full. Buyer hereby grants Seller and Seller hereby reserves a purchase money security interest in and to the goods sold to Buyer together with all proceeds thereof to secure Buyer’s performance and payment. Buyer agrees upon Seller’s request to do all acts and execute all documents reasonably necessary to assist Seller’s perfection and maintenance of any such security interest and right of possession, including, but not limited to, executing and filing documents with the appropriate governmental agency.
Buyer shall submit a purchase order (“Purchase Order”) for the goods which shall, at a minimum, include: (a) part number of the goods ordered; (b) quantity; (c) price of the goods; (d) requested delivery or need date; and (e) shipping instructions and shipping address, including a statement that the goods will be shipped “EXW Shipping Point” or “EXW Origin” and if the Purchase Order states otherwise, the shipping terms shall be Ex-Works Shipping Point. All Purchase Orders are subject to acceptance by Seller. Buyer shall be responsible for all additional costs resulting from errors made in connection with telephone or hand written Purchase Orders accepted by Seller and any errors related to such a Purchase Order must be disputed within 72 hours from Seller’s receipt of the Purchase Order. Confirming Purchase Orders are not accepted by Seller unless stamped as “Accepted” by Seller and returned to Buyer with such stamp affixed to the Confirming Purchase Order. If Buyer’s Order is in the form of a blanket Purchase Order, Buyer agrees that each shipment release shall be treated as a separate sales transaction hereunder, that all shipment releases shall be non-cancelable and, unless agreed in writing by Seller, all shipment releases under such blanket Purchase Order shall be accepted by Buyer within 12 months of Seller’s Order acknowledgement date to Buyer.
6. Order Cancellation/Amendment/Transfer.
Orders cannot be canceled or amended except with Seller’s written consent. Cancellation charges may be applied at Seller’s discretion. Pending or open Purchase Orders may not be sold, assigned, transferred or conveyed without Seller’s prior written consent and any attempt to so transfer or assign any pending or open Purchase Orders will, at Seller’s sole option and written notice to Buyer, render any or all such Purchase orders null and void. Any change of control of Buyer, or the transfer of more than 5% of Buyer’s capital stock or membership interests shall be deemed to be and assignment for the purposes of these T&Cs
Buyer shall conduct any incoming inspection tests on the goods within 30 days of delivery. In the event of any shortage, damage or discrepancy in or to a shipment of goods or pricing discrepancies, Buyer shall promptly give notice, but in no event later than within 30 days of delivery, thereof to Seller and shall furnish such written evidence or other documentation as Seller reasonably may deem appropriate. If such evidence indicates, in Seller’s reasonable judgment, that such shortage, damage or discrepancy existed at the time of delivery of the goods to the carrier, Seller shall promptly deliver additional or substitute goods to Buyer; provided, however, that Seller may, in its sole discretion, require Buyer to return all damaged or non- conforming goods prior to delivery of substitute goods. If Buyer shall fail to timely give Seller such written notice, the goods shall be deemed to conform to the warranty and Buyer shall be deemed to have accepted the goods and shall pay for the goods in accordance herewith.
Seller shall have the right to cancel for default hereunder all or any part of Buyer’s order. This right of cancellation is in addition to and not in lieu of any other remedies that Seller may have in law or equity.
No goods shall be returned to Seller without Seller’s prior written authorization to Buyer to make such returns and must be returned within 30 days of such authorization at Buyer’s cost. If Buyer returns goods in the manner required under the previous sentence, and if the returned goods are in new, unused, unopened and undamaged condition, the returned goods will, subject to the applicable handling charge, be accepted by Seller for return. Used or discontinued goods or parts or goods specially manufactured will not be accepted for credit unless specifically agreed to by Seller in its sole discretion. Buyer’s sole remedy for returns of goods shall be a credit for the purchase price less any handling charges. Returned goods are subject to a minimum of 20% handling charge. Returns found to be free of material and workmanship defects will be held for 20 days and if Buyer does not provide Seller repair or return instructions, the Seller will scrap the goods.
10. Buyer’s Specifications.
Buyer shall be solely responsible for ensuring that all specifications, drawings, information, advice, recommendations or requests provided to Seller by Buyer or any of its agents are accurate and suitable. Seller’s examination or consideration of any such specifications, drawings, information, advice, recommendations or requests shall not result in any liability on the part of Seller. Buyer shall be responsible for all field testing, verifying and assuring the accuracy of all designs and specifications provided to Seller to ensure the reliability and functionality of the goods as it pertains to the user experience. Buyer is solely responsible for the accuracy and content of all design specification materials, printed and electronic in origin, provided to Seller as necessary to produce the goods, including but not limited to engineering specifications (such as 2D/3D CAD data files), manufacturing, finishing, inspection, packaging and shipping specifications.
11. Seller Warranty.
Seller represents, warrants and covenants to Buyer that the goods manufactured by Seller will be manufactured in conformance with all design and manufacturing specifications provided by Buyer to Seller, all applicable laws, rules and regulations, and that the goods will be free from defects in workmanship under normal use and service for a period of 90 days from the date that goods are received by Buyer. Seller does not warrant the design or manufacturing specifications of any products or goods manufactured for or on behalf of Buyer. Seller’s liability for breach of this warranty is limited to the repair of or replacement in kind or credit, at Seller’s option, of any items proved defective, in Seller’s reasonable discretion, provided the allegedly defective goods are returned to Seller prepaid. All costs and expenses related to shipping of any replacement parts or goods shall be paid by Seller if there is a breach of this warranty, but Buyer shall pay for all other costs. Buyer must provide prompt written notice to Seller of any breach of this warranty to obtain its benefits. THE WARRANTY EXPRESSED ABOVE IS IN LIEU OF AND EXCLUSIVE OF ALL OTHER WARRANTIES. THERE ARE NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, EXCEPT AS STATED HEREIN. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE SPECIFICALLY DISCLAIMED. SELLER’S LIABILITY FOR BREACH OF WARRANTY IS AS HEREIN STATED AND IS THE EXCLUSIVE REMEDY AND IN NO EVENT SHALL SELLER BE LIABLE OR RESPONSIBLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE POSSIBILITY OF SUCH INCIDENTAL OR CONSEQUENTIAL DAMAGES HAS BEEN MADE KNOWN TO SELLER. THE WARRANTY SET FORTH ABOVE IS SOLELY FOR THE BENEFIT OF BUYER. All claims hereunder shall be made by Buyer and not by Buyer’s customers. It shall not be deemed a “defect,” and Seller will not be liable under the warranty in this Section 11, if the goods have been exposed to any: (1) maintenance, repair, or other use that is improper for the good’s ordinary use or otherwise not in compliance with Seller’s instruction; (2) goods alteration, modification or repair by anyone other than Seller or authorized by Seller; (3) damage after shipment to Buyer; or (4) use of parts that are not 100% compatible with the goods.
12. Buyer Warranty.
Buyer represents, warrants and covenants to Seller that the goods as manufactured in accordance with Buyer’s design and manufacturing specifications do not and shall not violate any applicable laws, rules or regulations or a patent, copyright, trade secret or other proprietary right of any third party. Buyer shall provide a no defect in materials or workmanship warranty with respect to each product sold to an end customer for a period not less than the then remaining warranty period related to such product and afforded to Buyer pursuant to Section 11 (Seller Warranty) above. Except with respect to the remedies provided by Seller to Buyer under Section 11, any other warranties or representations, or remedies for breach thereof, which Buyer may provide to its end customers shall be the sole responsibility of Buyer, and Seller shall not be bound thereby. Unless Buyer receives Seller’s prior written consent, Buyer will not sell Seller’s products to end-users or intermediaries that sell to end-users that will use or sell the products in a nuclear application or for any other application that Seller may notify Buyer of in writing.
13. Damages Amount Limitation.
Other than as set forth in Section 16 (Buyer Indemnification) and any breaches of Section 17 (Confidentiality) hereof, each party’s cumulative liability for damages to the other party for any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including, but not limited to, negligence, shall be limited to the total contract price of the goods sold hereunder, plus or minus, as applicable, the amounts of all unpaid accounts payable and receivable between the parties, if any. 14. Consequential Damages Limitation. In no event shall Seller’s liability of any kind include any special, indirect, incidental or consequential loss or damage, even if Seller shall have been advised of the possibility of such potential loss or damage.
15. Sole Remedy.
The sole and exclusive remedy for breach of any non-warranty obligation of Seller and the sole remedy for Seller’s liability of any kind (including liability for negligence) with respect to the goods and services provided to Buyer shall be to use all commercially reasonable efforts to promptly cure such breach. Buyer must commence any suit for a cause of action arising hereunder within one year from the date in which the facts that gave rise to the cause of action first occurred.
16. Buyer Indemnification.
Buyer shall hold harmless, indemnify and defend (at Seller’s request) Seller for any and all damages, liabilities, costs and expenses (including any costs of litigation, including but not limited to, attorneys’ fees and any other costs and expenses), fines, or losses in connection with any threatened or actual claims, actions, demands, investigations, or suits, including, but not limited to, claims or suits by third parties, arising out of any of the following: (a) any claim based upon an allegation that the goods (to the extent they conform with Buyer’s design and manufacturing specifications) infringes a patent, copyright, trade secret or other proprietary right, and to pay the amount of any settlement, or the costs and damages awarded, with respect to such claim, (b) Buyer’s negligent or willful acts, or those of its employees and/or agents, (c) such goods being repaired or altered by persons other than Seller (unless expressly authorized in writing by Seller), (d) from goods produced by Seller according to Buyer’s specifications, (e) any violations of export control laws by Buyer, or (f) Buyer’s breach of any provision in these T&Cs.
“Confidential Information” means any of Seller’s (a) business information, specifications and all related writings, drawings, designs and similar works or any other information which is disclosed by Seller and labeled or marked as confidential, proprietary or its equivalent, or (b) oral or visual information that is designated confidential, proprietary or its equivalent at the time of its disclosure, or (c) Seller’s manufacturing processes and suppliers used for the procurement of materials, parts, or components incorporated into the goods, whether or not such information is marked as confidential or proprietary. All Confidential Information shall be the exclusive property of Seller, and Seller retains all its right, title and interest. Buyer agrees to use Confidential Information for the exclusive purpose of performance under the Purchase Order and not to disclose or provide any Confidential Information to any third party and to take all necessary measures to prevent any such disclosure by its employees, agents, contractors or consultants. Upon request of Seller or completion of the Order, Buyer shall return all Confidential Information to Seller and provide certification of such return.
Charges made for tools, dies, gauges, jigs, fixtures or equipment made or acquired by Seller in connection with the work do not convey title to or any proprietary interest in such tools. All such tools will remain the exclusive property of Seller.
19. Force Majeure.
Seller shall not be liable for any failure to perform this agreement when such failure is due to circumstances beyond its control. Circumstances beyond the control of Seller shall be deemed to include, but shall not be limited to, acts of God, governmental action, accidents, labor trouble, and inability to obtain materials, equipment or transportation.
No oral statements, recommendations or assistance given by a representative and/or distributor of Seller to Buyer or its representatives in connection with the use of the goods shall constitute a waiver by Seller of any of the provisions hereof, or affect Seller’s liability herein.
Except for any action where the sole relief sought is an injunction, any controversy or claim arising out of or relating to these T&Cs, or the making, performance or interpretation thereof, including without limitation alleged fraudulent inducement thereof, shall be settled by binding arbitration in Denver, Colorado by one arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon any arbitration award may be entered in any court having jurisdiction thereof.
All provisions set forth herein regarding warranty, confidential information, indemnification, liability and limits thereon, and any other provisions that survive by their terms will survive any termination or expiration of any Response delivered in connection herewith pursuant to the terms of such sections. In the event that any provision of these T&Cs is held to be illegal, invalid or unenforceable under any present or future law, rule or regulation, such provision shall be deemed stricken from these T&Cs, but such illegality, invalidity or unenforceability shall not invalidate any of the other provisions of these T&Cs. Buyer represents and covenants that it has, and will continue to, comply with all laws and regulations related to the goods sold hereunder, including, but not limited to, export control laws. This sale transaction shall be governed, construed and enforced solely by the laws of the State of Colorado. Buyer may not assign, including by operation of law, its obligations hereunder without Seller’s written consent.
23. Export Controls and Related Regulations.
Buyer represents and warrants that it is not designated on, or associated with, any party designated on any of the U.S. government restricted parties lists, including without limitation, the U.S. Commerce Department Bureau of Industry and Security (“BIS”) Denied Persons List; Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List. Buyer shall comply with all applicable U.S. economic sanctions and export control laws and regulations, including without limitation, the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC. Seller may terminate this Order and discontinue any ongoing supply to or business with Buyer immediately, without notice and without liability, upon Seller becoming aware that Buyer is named on any restricted party list.