HAYNES MANUFACTURING CO. STANDARD TERMS AND CONDITIONS OF SALE

 

1. APPLICABILITY OF TERMS AND These terms and conditions shall govern and control all sales by Haynes Manufacturing Co. (hereincalled "Seller"), unless otherwise expressly agreed to in writing, signed by Seller at its home office in Westlake, Ohio, by an authorized agent. Terms andconditions contained in Buyer’s purchase order, or any other writing in which Buyer manifests its intent to purchase, that are different from, in addition to, inconflict with or otherwise vary the terms herein are hereby objected to and shall not be binding on Seller. Buyer shall be deemed to have agreed to all terms and conditions contained herein by issuing a purchase order number. If for any reason, Seller's Quotation is deemed an acceptance of an offer made by Buyer, Seller’s acceptance is expressly conditioned on Buyer's assent to the terms herein, which assent shall be evidenced by the earlier of Buyer's acceptance of items delivered by Seller or any other performance by Buyer hereunder. Seller will proceed to sell goods only if Buyer assents to the terms and conditions contained herein.

 

1. QUOTATION, ORDERS, AND All prices and specifications set for on the face of Seller's Quotation are valid for a period of thirty (30) days (unless otherwise specified) after the date on said Quotation but are thereafter subject to change without notice unless expressly indicated otherwise on the face of the Quotation. All quotations on Seller's standard catalog items are made subject to prior sale of such goods.

 

1. Seller's prices do not include any Federal, state or local taxes or fees or any custom, export, import, wharfage or associated due or duties, and any such taxes or fees now in effect or hereafter levied shall be in addition to such prices and shall be paid by Buyer (except taxes based on the income of Seller). Buyer shall defend, indemnify and hold Seller harmless from and against any and all such taxes and fees, including, without limitation, any cost, expense, attorneys’ fees, interest or penalty assessed against or incurred by Seller as a result of Buyer's failure to pay any such taxes or fees.

 

1. SHIPMENTS, FREIGHT AND All prices are F.O.B. point of shipment. Special packing, shipping and transportation charges resulting from compliance with Buyer’s request with respect to the use of any agency or method of transportation other than that which would otherwise have been designated by Seller shall be paid by Buyer. Seller's placement of the purchased goods at the point of shipment, in the possession of a trucking company, railroad company or other common carrier or on Buyer's vehicle shall constitute delivery to the Buyer, and thereafter Buyer shall bear all expense and risk of loss.

 

1. SHIPPING Shipping estimates made to Buyer shall date from receipt by Seller of Buyer's complete and final instructions. Shipping date of goods requiring inspection by the Buyer before shipment will be extended by the time consumed by any such inspection.

 

1. Net thirty (30) days from date of Seller's invoice. A service charge of one and one-half percent (1.5%) per month will be added to all past due invoices, but only to the extent lawfully chargeable.

 

1. FINANCIAL Notwithstanding any provision herein to the contrary, Buyer's financial responsibility is at all times subject to approval of Seller’s Credit Department, and Seller at any time may require payment in advance or satisfactory security or guarantee that invoices will bepaid promptly when due. If Buyer fails to comply with any terms of payment, Seller may withhold any further deliveries or terminate this Agreement, and any unpaid amount thereupon shall be due and owing immediately.

 

1. Buyer shall notify Seller of any defect, error or shortage in any items received by Buyer, in writing, within ten (10) days after delivery thereof, and said written notice must state the applicable Seller Order Number and must be accompanied by any documents or other papers that substantiate the alleged defect, error or shortage. If Buyer fails to provide Seller with timely written notice of any such defect, error or shortage and the documents or papers in support thereof and the applicable Seller Order Number, Buyer shall be deemed to have waived such defect, error or shortage and shall be deemed to have accepted the items delivered.

 

1. BUYER'S AGREEMENT TO If any goods are manufactured or sold by Seller to meet Buyer's instructions, specifications or any other requirements and such goods are not included among Seller's standard catalog items offered by it to the trade generally in the usual course of its business,Buyer agrees to defend, indemnify and hold Seller harmless from and against any and all loss, cost, damage, liability or expense (including, withoutlimitation, any penalties or punitive damages, attorneys' fees and expenses and costs of suit) arising out of the manufacture, sale or use of such goods, including without limitation, claims for actual or alleged infringements of any United States or foreign patent or copyright, or any actual or alleged unfaircompetition resulting from similarity in design, trademark or appearance. If any goods sold to Buyer are not used by Buyer in accordance with Seller'scatalogs, specifications, instructions and recommended installation procedures, Buyer agrees to defend, indemnify and hold Seller harmless from and against any and all loss, cost, damage, liability or expenses (including, without limitation, costs of suit and attorneys' fees and expenses) arising out of or relating to or resulting in any way from such use by Buyer.

 

1. WARRANTY AND DISCLAIMERS OF Seller warrants to Buyer that the goods supplied hereunder will be free from defects in material and workmanship under normal and proper usage for a period of one year from the date of shipment by Seller. The foregoing warranty shall not cover and Seller makes no warranties with respect to (i) any goods that have been subject to abuse, misuse, misapplication, neglect, alteration or accident; toimproper or incorrect installation of maintenance; or to abnormal conditions of use, temperature, moisture, dirt or corrosive matter; and (ii) any materials, parts, goods and other components that are manufactured by someone other than Seller. THE FOREGOING WARRANTY IS EXCLUSIVE AND INLIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE ARISING BY OPERATION BY LAW,TRADE, USAGE OR COURSE OF DEALING, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OFMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

THE FOREGOING WARRANTY EXTENDS ONLY TO BUYER AND NO OTHER PERSON. Buyer shall provide Seller with written notice ofany breach of the warranty set forth above within thirty (30) days after Buyer discovers, or should have discovered, the alleged breach.

Time is of the essence herein, and Buyer's failure to provide timely written notice to Seller of any alleged breach of the foregoing warranty shall fully and completely release and discharge Seller from any obligation or liability for that breach of warranty.

 

1. REMEDIES AND LIMITATION OF In the event of any material breach of the warranty set forth above, Seller shall, at its sole option, credit Buyer's account or repair any defective goods or furnish a replacement part or goods, all subject to Buyer timely providing the required written notice of the alleged breach. THE REMEDIES SET FORTH HEREIN SHALL BE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE   TO   BUYER   SO   THAT   SELLER'S   CREDIT   OF   BUYER'S ACCOUNT OR REPAIR OR REPLACEMENT  IS  A  FULFILLMENT  OF ALL  SELLER'S  OBLIGATIONS. SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR SPECIAL DAMAGES OF ANY KIND, NOR UNDER ANY CIRCUMSTANCES SHALL SELLER BE LIABLE FOR DAMAGES BEYOND THE PRICE OF THE GOODS PURCHASEDBY BUYER, WHETHER IN CONTRACT, IN TORT OR UNDER ANY WARRANTY

OR OTHER USE. If requested by Seller, the goods alleged to be defective shall be returned to Seller, at its direction and expenses, for examination. No goods are to be returned to Seller without its prior written authorization. If Seller discovers that any goods so returned are not covered by the foregoing warranty, Seller reserves the right to charge the Buyer for all transportation costs and expenses incurred by Seller in examining, processing or handling of such goods. Any controversy orclaim arising out of or relating to this agreement or the breach hereof, must be commenced within two (2) years after the cause of action has accrued.

1. DEFAULT OR Seller shall not be liable for any default or delay in the production or delivery of any goods when such default or delay resultseither directly or indirectly from: (a) accidents to, or breakdowns or mechanical failure of, Seller's plant machinery or equipment; strikes or other labor activities or labor shortages; fire; flood; wars; acts of the public enemy; acts of God; delays by any supplier; delays in transportation or lack of transportation facilities; embargoes; shortages of, or reductions in, energy sources; priorities, allocations, limitations, restrictions or other acts required orrequested by Federal, state or local governments, or any subdivision, bureau or agency thereof; or (b) any other cause beyond the control of Seller. SELLERSHALL NOT BE LIABLE FOR ANY LOSS, COST, PENALTY OR ANY CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES OF ANY KIND OCCASIONED BY OR ARISING OR RESULTING FROM ANY DEFAULT OR DELAY IN DELIVERY BY SELLER, WHETHER OR NOT SAID LOSS, COST, PENALTY OR DAMAGE WAS REASONABLY FORESEEABLE.

 

1. Orders shall not be cancelable by Buyer for delays in delivery or other cause until written notification of such intention has been received by Seller. In any event, however, Buyer shall be obligated to accept and pay for (i) any goods previously shipped to its order, (ii) any goodsmanufactured specifically for Buyer and in stock but not yet shipped to Buyer and/or (iii) to pay cancellation charges based on expenses incurred or commitments made by Seller for any goods which are in the process of manufacture specifically for Buyer. In addition to the foregoing, Seller reserves the right on orders canceled by Buyer to apply a minimum cancellation charge of up to forty percent (40%) of the purchase price of the unshipped portion of the order.

 

1. No goods may be returned without first having secured prior written authorization from Seller's home office and, in any event, only non-obsolete standard stock items in original cartons and unused may be returned, freight prepaid by Buyer. Return requests must be initiated within one yearfrom date of original shipment. Such requests will follow the same channels as order placement. Returns shall be subject to factory inspection by Seller forcondition, resalability and quantity before credit is issued to Buyer, which credit shall only be applicable to replacement or future purchases by Buyer. Seller reserves the right to apply a minimum restocking charge of up to forty percent (40%) of the purchase price of the order plus original freight charges to all returns. Goods specifically manufactured for Buyer including, but not limited to, private label products are not subject to return for credit under any circumstance unless specifically authorized in writing Seller.

 

1. GOVERNING The right of Seller and Buyer and the construction of these terms and conditions shall be governed by the laws of the state of Ohio, without giving effect to principles of conflict of laws. THE PARTIES AGREE THAT ANY ACTION ARISING OUT OF THISAGREEMENT OR IN CONNECTION WITH THE GOODS COVERED SHALL BE BROUGHT IN THE FEDERAL, STATE OR LOCALCOURT LOCATED IN, OR OTHERWISE HAVING JURISDICTION OVER, CUYAHOGA COUNTY, OHIO, AND THE PARTIESHEREBY CONSENT TO PERSONAL JURISDICTION IN SUCH COURTS AND WAIVE ANY OBJECTION BASED ON JURISDICTION OR VENUE OF ANY SUCH ACTION.

 

1. These terms and conditions shall be binding upon and inure to the benefit of the parties hereto and their respective successors andassigns. The failure of either party to insist upon a strict performance of any provision hereof or the exercise of any right or remedy shall not affect or in anyway impair its rights. No amendment, modification or waiver of any provision hereof shall be valid, binding and enforceable unless in writing and signed by both parties. Each provision hereof shall be severable, and in the event any provision hereof is held to be contrary to law, invalid or unenforceable, the remaining provisions shall not be affected thereby, but shall remain in full force and effect.

 

1. COMPLIANCE WITH S. TRADE CONTROL LAWS. (a) Buyer acknowledges that all sales are subject to all United States laws and regulations now orhereafter applicable to the parties to (or any of their affiliates), including, but not limited to, U.S. trade control laws and regulations relating to:

(i) economic and financial sanctions, including, but not limited to, those administered or enforced by OFAC or the U.S. Department of State; (ii) export controls, including, but not limited to, those administered or enforced by the U.S. Department of Commerce or U.S. Department of State; (iii) anti- corruption matters, including but not limited to, the U.S. Foreign Corrupt Practices Act of 1977, as amended; and (iv) any other law of similar effect or thatrelates to U.S. trade controls or anti-corruption (collectively, and as amended from time to time, “U.S. Trade Control Laws”). (b) Buyer agrees to complyand is in compliance in all respects with all applicable U.S. and non-U.S. laws, ordinances, rules, regulations and orders of all governmental authoritiesrelating to the sale and purchase of Goods under these terms and conditions. To this effect, Buyer acknowledges that all Goods are subject to U.S. TradeControl Laws of the United States and Buyer agrees not to and shall not sell, transfer or lease the Goods to any person that is: (i) a target of U.S., EuropeanUnion, United Kingdom, or other economic, financial or trade sanctions in force from time to time; (ii) named, identified or described on any blocked personslist, specially designated nationals list, prohibited persons list, or other official list of restricted persons with whom U.S.,

European Union or United Kingdom persons, or persons otherwise subject to the jurisdiction of the U.S., the European Union or the United Kingdom may not conduct business, including, but not limited to, restricted party lists published or maintained by (A) OFAC, (B) the U.S. Department of Commerce, (C)the U.S. Department of State, (D) the European Union or (E) His Majesty’s Treasury of the United Kingdom; or (iii) owned or controlled by, or an actor on behalf of, any person described in clauses (i) or (ii).