Standard Terms For Aftermarket Parts

Applicable Terms

These terms govern the purchase and sale of the equipment and related services, if any (collectively, “Equipment”), referred to in Seller’s purchase order, quotation, proposal or acknowledgment, as the case may be (“Seller’s Documentation”). Whether these terms are included in an offer or an acceptance by Seller, such offer or acceptance is conditioned on Buyer’s assent to these terms. Seller rejects all additional or different terms in any of Buyer’s forms or documents.

Payment

Buyer shall pay Seller the full purchase price as set forth in Seller’s Documentation. Unless Seller’s Documentation provides otherwise, freight, storage, insurance and all taxes, duties or other governmental charges relating to the Equipment shall be paid by Buyer. If Seller is required to pay any such charges, Buyer shall immediately reimburse Seller. All payments are due within 30 days after receipt of invoice. Partial shipments and invoices will be allowed unless otherwise agreed by the parties. Buyer shall be charged the lower of 1 1/2% interest per month or the maximum legal rate on all amounts not received by the due date and shall pay all of Seller’s reasonable costs (including attorneys’ fees) of collecting amounts due but unpaid. All orders are subject to credit insurance approval. These terms are completely independent from, and in no way contingent upon, when you receive payment, from the Owner and/or prime contractor.

Delivery

Delivery of the Equipment shall be in material compliance with the schedule in Seller’s Documentation. Unless Seller’s Documentation provides otherwise, Delivery terms are F.O.B. Shipping Point.

Ownership of Materials

All devices, designs (including drawings, plans and specifications), estimates, prices, notes, electronic data and other documents or information prepared or disclosed by Seller, and all related intellectual property rights, shall remain Seller’s property. Seller grants Buyer a non-exclusive, non-transferable license to use any such material solely for Buyer’s use of the Equipment. Buyer shall not disclose any such material to third parties without Seller’s prior written consent.

Changes

Seller shall not implement any changes in the scope of work described in Seller’s Documentation unless Buyer and Seller agree in writing to the details of the change and any resulting price, schedule or other contractual modifications. This includes any changes necessitated by a change in applicable law occurring after the effective date of any contract including these terms.

Warranty

Subject to the following sentence, Seller warrants to Buyer that the Equipment shall materially conform to the description in Seller’s Documentation and shall be free from defects in material and workmanship. The foregoing warranty shall not apply to any Equipment that is specified or otherwise demanded by Buyer and is not manufactured or selected by Seller, as to which:

1. Seller hereby assigns to Buyer, to the extent assignable, any warranties made to Seller and
2. Seller shall have no other liability to Buyer under warranty, tort or any other legal theory.

1. operating and maintaining the Equipment in accordance with Seller’s instructions,
2. not making any unauthorized repairs or alterations, and
3. not being in default of any payment obligation to Seller.

Indemnity

Seller shall indemnify, defend and hold Buyer harmless from any claim, cause of action or liability incurred by Buyer as a result of third party claims for personal injury, death or damage to tangible property, to the extent caused by Seller’s negligence. Seller shall have the sole authority to direct the defense of and settle any indemnified claim. Seller’s indemnification is conditioned on Buyer:

1. promptly, within the Warranty Period, notifying Seller of any claim, and
2. providing reasonable cooperation in the defense of any claim.

Force Majeure

Neither Seller nor Buyer shall have any liability for any breach (except for breach of payment obligations) caused by extreme weather or other act of God, strike or other labor shortage or disturbance, fire, accident, war or civil disturbance, pandemic, delay of carriers, failure of normal sources of supply, act of government or any other cause beyond such party’s reasonable control.

Cancellation

If Buyer cancels or suspends its order for any reason other than Seller’s breach, Buyer shall promptly pay Seller for work performed prior to cancellation or suspension and any other direct costs incurred by Seller as a result of such cancellation or suspension. In the event Buyer wishes to return material for credit – A return material authorization (R. M. A.) must be issued from the Seller before any return. Equipment to be returned must be in new condition, suitable for restocking and resale. Non stock items are not returnable. Items invoiced over 12 months prior are not returnable. Restocking fee of 25% of item value applies. Return freight and associated costs are for the account of the Buyer.

Assignment

Seller may assign, transfer or subcontract any Order or any right or any obligation hereunder without Buyer’s prior written consent. Seller may assign its rights and obligations under these terms to its affiliates or in connection with the sale or transfer of the Seller’s business and Seller may grant a security interest in the agreement and/or assign proceeds of the agreement without Buyer’s consent.

LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, AND SELLER’S TOTAL LIABILITY ARISING AT ANY TIME FROM THE SALE OR USE OF THE EQUIPMENT SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE EQUIPMENT. THESE LIMITATIONS APPLY WHETHER THE LIABILITY IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY.

Miscellaneous

If these terms are issued in connection with a government contract, they shall be deemed to include those federal acquisition regulations that are required by law to be included. These terms, together with any quotation, purchase order or acknowledgement issued or signed by the Seller, comprise the complete and exclusive statement of the agreement between the parties (the “Agreement”) and supersede any terms contained in Buyer’s documents, unless separately signed by Seller. No part of the Agreement may be changed or cancelled except by a written document signed by Seller and Buyer. No course of dealing or performance, usage of trade or failure to enforce any term shall be used to modify the Agreement. If any of these terms is unenforceable, such term shall be limited only to the extent necessary to make it enforceable, and all other terms shall remain in full force and effect. Buyer may not assign or permit any other transfer of the Agreement without Seller’s prior written consent. The Agreement shall be governed by the laws of the Commonwealth of Pennsylvania without regard to its conflict of laws provisions.

RESERVATION CLAUSE (International ONLY including Canada and Mexico)

Buyer acknowledges that Seller is required to comply with applicable export laws and regulations relating to the sale, exportation, transfer, assignment, disposal and usage of the (Work/Equipment/Services) provided under the contract, including any export license requirements. Buyer agrees that such (Work/Equipment/Services) shall not at any time directly or indirectly be used, exported, sold, transferred, assigned or otherwise disposed of in a manner which will result in non-compliance with such applicable export laws and regulations. It shall be a condition of the continuing performance by Seller of its obligations hereunder that compliance with such export laws and regulations be maintained at all time.

BUYER AGREES TO INDEMNIFY AND HOLD SELLER HARMLESS FROM ANY AND ALL COSTS, LIABILITIES, PENALTIES, SANCTIONS AND FINES RELATED TO NON-COMPLIANCE WITH APPLICABLE EXPORT LAWS AND REGULATIONS.

Material Escalation Clause

The Seller acknowledges that fluctuations in the metals markets and steel surcharges are beyond its control. As a result, the prices stated in this proposal are subject to adjustment based on changes in base metal costs and surcharges, as determined by both the CRU index (accessible at CRU Indices) and the Allegheny Ludlum surcharge calculator and surcharge history data, which is updated monthly and can be accessed at: ATI Surcharge History.

In the event that the Buyer alters the quoted project schedule, any resulting escalation will be governed by this clause. If the index and surcharge data at the time of material procurement exceeds the values applicable at the proposal’s validity date, the Seller reserves the right to adjust the price of the material portion of the contract. Such adjustments will reflect the difference between the material costs at the time of purchase (as indicated by the surcharge calculator and the CRU index) and the material costs at the proposal’s issuance.

The Seller retains the discretion to invoke this escalation clause. Should escalation be applied, the Seller will provide detailed supporting documentation for any price adjustments on the corresponding invoices.