STANDARD TERMS AND CONDITIONS
JORDAN ALUMINUM COMPANY
STANDARD TERMS AND CONDITIONS OF SALE
1. AGREEMENT. These terms and conditions, together with any proposal, quotation, order acknowledgment or similar document issued to you, and any documents incorporated therein (collectively, the “Agreement”), constitute a contract binding Jordan Aluminum Extrusion Company, LLC (as “Seller”) and you (as “Buyer”). The Agreement replaces and supersedes all purchase orders, correspondence, shipping instructions and similar documents issued by Buyer respecting any and all goods and products to be sold, designed, manufactured, purchased or delivered hereunder (collectively, “Products”) and is not intended to evidence Seller’s acceptance of any such documents. The Agreement is expressly conditioned on Buyer’s assent to these terms and conditions and Seller hereby notifies Buyer of its objection to any different or additional terms. Seller will not be deemed to have waived these terms and conditions if it fails to object to any provision contained in Buyer’s documents or otherwise. If these terms and conditions are not acceptable, Buyer must notify Seller in writing at once. Buyer’s action in (a) taking delivery of or making payment for any Products, or (b) receiving this document without written objection within three business days of receipt, will constitute an unqualified acceptance by Buyer of the Agreement, including these terms and conditions.
2. PRICES. The prices for the Products are set forth on Seller’s proposal, quotation, or order acknowledgment. All prices are subject to change without notice, and the prices stated herein will be invoiced and remitted at Seller’s prices in effect at the time of actual shipment. Prices shown and payments due under this agreement are in U.S. Dollars.
3. PAYMENT TERMS. The payment terms for the Products are set forth on Seller’s proposal, quotation, or order acknowledgment. Payments not made when due will be subject to a late charge accruing from the date due until paid in full at the rate of 1.5% per month (but not to exceed the maximum rate permitted by applicable law). If Seller engages an attorney to assist in collecting amounts due from Buyer, whether or not the collection efforts include litigation, Buyer agrees to pay Seller all costs of collection, including but not limited to reasonable attorneys’ fees and expenses. Buyer hereby grants Seller a purchase money security interest in all Products and proceeds thereof until payment is made therefor, and Buyer authorizes Seller to file financing statements indicating such security interest. Notwithstanding any language to the contrary on Buyer’s check, draft or other order negotiated by Seller, Buyer’s account will not be deemed paid in full until finally paid.
4. CREDIT. All orders are subject to credit approval. Seller reserves the right to alter or suspend credit and to change credit terms at any time if Seller believes, in its sole discretion, that Buyer’s financial condition warrants. If at any time prior to completion of performance under this Agreement, Seller has reasonable cause to doubt Buyer’s ability or intention to perform, Seller may demand assurances from Buyer of its ability or intention to perform and may suspend Seller’s performance pending receipt of such assurances. Buyer’s failure to provide assurances as requested will be a breach of the Agreement. Such reasonable assurances may include evidence of Buyer’s financial health, including evidence of its ability to pay amounts that might become due under this Agreement, and the provision of third party sureties guaranteeing such payment.
5. TAXES. Except for income taxes normally paid by Seller, Buyer will pay or reimburse Seller for any tax now or hereafter imposed by any taxing authority in respect to the sale, manufacture, delivery, use or other handling of the Products.
6. DELIVERY; TITLE AND RISK OF LOSS. Seller will exercise commercially reasonable efforts to meet any shipment dates and lead times specified in the Agreement, but such dates are estimates only and are not guaranteed by Seller. Unless otherwise agreed in writing, delivery hereunder will be made F.O.B. Seller’s facility, with transportation expenses paid by Buyer. Notwithstanding the foregoing or any provision in the Agreement to the contrary, title to, ownership of, and risk of loss, destruction or damage to all Products will pass to Buyer at the time of Seller’s relinquishment thereof to the carrier for delivery to Buyer, even though the carrier may be selected by Seller. Seller will not be liable for any loss, destruction or damage to any Products that is suffered or incurred in connection with the transportation or delivery thereof from Seller’s facility to the delivery point set forth in the Agreement and Buyer will make any claims with respect to such loss, destruction or damage solely against the carrier, even though the carrier may be selected by Seller. If any shipment is delayed because of Buyer, Buyer will reimburse Seller for the costs and expenses incurred by Seller because of such delay, including but not limited to Seller’s cost and expense to store any Products. Seller may deliver Products in installments.
7. FORCE MAJEURE. Seller will not be liable for any delay or non-delivery of Products caused by circumstances beyond its reasonable control, including but not limited to declared or undeclared war, acts of terrorism, fire, flood, explosions, strikes, labor trouble or shortages, accidents, breakdowns, mechanical failure of machinery or equipment, riot, act of governmental authority, acts of God, unavoidable casualties, failure of any usual sources of supplies of raw materials, supplies and equipment, including electrical energy, delays in transportation or lack of transportation facilities, restrictions imposed by federal or state legislation, rules, regulations, orders or ordinances. In the event that any delivery is suspended or delayed by reason of the occurrence of one or more of the foregoing causes, deliveries may be made, at Seller’s option, after cessation of such causes and nothing herein will excuse Buyer’s obligation to pay in full for any part of the order delivered before or after commencement of cessation of such causes.
8. INSPECTION. Buyer will promptly inspect the Products upon delivery. If Buyer finds it appropriate to reject any Products, it will notify Seller in writing within ten days of delivery and hold such Products pending Seller’s inspection.
9. TOLERANCES. All Products will be subject to industry standard quantity, specification and dimension tolerances as recognized by the Aluminum Association.
10. LIMITED WARRANTY; EXCLUSIVE REMEDY. Seller warrants that Products delivered under this Agreement will be free from commercially unacceptable defects in material and workmanship for a period of one year from the date of shipment from Seller’s facility. Seller will not be responsible for any damage to, or caused by, Products because of improper installation, improper storage, improper maintenance, unauthorized service, alteration or modification, neglect, abuse, or improper use. This warranty does not extend to component parts not manufactured by Seller.
Claims for defects in material and workmanship will be made in writing to Seller within the warranty period and within thirty days of discovery of the alleged defect. Failure to provide such notice will be conclusive evidence that the Product conforms to the warranty and Seller will be released from all liability related to the Product. Following timely and proper notice, Seller will have the opportunity, at its option, to inspect the Product by either sending a representative to Buyer’s facility or requiring Buyer to return the Product to Seller’s facility at Buyer’s expense. If, in Seller’s opinion, after such inspection, the complaint of Buyer is valid, or if Seller elects not to inspect, Seller will cure such nonconformity within a reasonable period by, at its option, repairing or replacing the nonconforming Products or refunding to Buyer the price paid for such Products (in which case, Buyer will return the Products to Seller). Buyer will bear the costs of access (including removal and replacement of systems, structures or other parts of Buyer’s facility), de-installation, decontamination, reinstallation and transportation of Products to Seller and back to Buyer. Any warranty repair or replacement Products provided by Seller pursuant to this warranty will be warranted by Seller for a period equal to the remainder of the original warranty period.
THIS LIMITED WARRANTY IS COMPLETE AND EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES TO BUYER. SELLER MAKES NO OTHER WARRANTY OR REPRESENTATION WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND, TO THE FULL EXTENT PERMITTED BY LAW, ALL SUCH OTHER WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.
11. LIMITATION OF LIABILITY. IN NO EVENT WILL SELLER’S LIABILITY FOR ANY CLAIMS, DAMAGES, LOSSES, LIABILITIES, OR EXPENSES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS (collectively, “Claims”), WHETHER SUCH CLAIMS ARISE IN CONTRACT, OR BY REASON OF ANY TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTE, WARRANTY OR OTHERWISE, EXCEED THE SALE PRICE OF THE PRODUCTS. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT OR ELSEWHERE TO THE CONTRARY, IN NO EVENT WILL SELLER BE LIABLE FOR ANY CLAIMS OF LOSS OF PROFIT OR REVENUES, LOSS OF PRODUCT, INTERRUPTION OF BUSINESS, COST OF CAPITAL, COST OF COVER, DOWNTIME COSTS, INCREASED OPERATING COSTS, CLAIMS OF BUYER’S CUSTOMERS, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND.
12. INDEMNITY. To the full extent permitted by law, Buyer will defend, indemnify and hold harmless Seller and Seller’s officers, members and employees from and against any and all Claims, including attorneys’ and experts’ fees and expenses, arising out of or related to the sale, design, manufacture, purchase, transportation, delivery, use or possession of any Products, whether such Claims arise in contract, or by reason of any tort (including negligence and strict liability), statute, warranty or otherwise, except to the extent such Claim was caused solely by the negligence or intentional misconduct of a person or entity indemnified hereunder. Buyer expressly waives any right, whether arising under this Agreement or by operation of law, to indemnity or contribution from Seller with respect to Buyer’s liability for the Claims of persons or entities not a party to this Agreement in any way arising out of or related to Products.
13. CANCELLATION. The Agreement may not be canceled without Seller’s prior written consent and payment to Seller of a sum equal to its total of out-of-pocket expenses incurred in connection with Buyer’s order, including but not limited to any charges made to Seller by suppliers for cancellation, plus a reasonable sum for overhead, expenses and lost profits, all as reasonably determined by Seller.
14. DESIGN DOCUMENTS. All designs, plans, prints, drawings and specifications of any kind prepared by Seller with respect to Products are and will remain the sole property of Seller. With respect to any Products not included in Seller’s standard product line generally offered for sale in the usual course of Seller’s business, Buyer acknowledges and agrees that it has engaged Seller to manufacture such Products to Buyer’s specifications and requirements. Seller will not be responsible for the adequacy of plans, prints, drawings, specifications or requirements respecting such Products or the adequacy of the design represented thereby. Seller also will not be responsible for determining or assuring that such Products, or the use or application thereof, conforms to any applicable laws, standards, rules or regulations. Seller’s only warranty with respect to such Products will be as set forth in the “Warranty” paragraph above.
15. EQUIPMENT. Any equipment (including jigs, dies and tools) that Seller constructs or acquires for use exclusively in the production of any Products for Buyer will be and remain Seller’s property and any charges by Seller therefor will be for the use of such equipment only. Unless otherwise agreed in writing, Seller may make such use or disposition thereof as Seller desires without liability to Buyer. Any equipment, pallets or containers specified to Buyer as returnable, whether or not a charge is made or a deposit required, will be promptly returned in accordance with Seller’s instructions.
16. PATENTS; INTELLECTUAL PROPERTY. With respect to any Products not included in Seller’s standard product line generally offered for sale in the usual course of Seller’s business, Buyer agrees to defend, indemnify and hold harmless Seller and Seller’s officers, members and employees from and against any and all Claims, including attorneys’ and experts’ fees and expenses, arising out of or related to actual or alleged infringement of any United States or foreign patent. No intellectual property or proprietary information is being sold, granted, transferred, licensed or assigned in connection with this Agreement, and the Products do not constitute works made for hire. Buyer’s access to and use of any intellectual property and proprietary information of Seller in connection with any Products is nonexclusive and limited to the use and maintenance of such Products as contemplated by this Agreement.
17. CONFIDENTIALITY. Each party agrees to hold in confidence, and not disclose to any third party or use for its own benefit, any confidential or proprietary information supplied to it by the other party in connection with this Agreement. Confidential information does not include information that is (i) within or becomes part of the public domain, (ii) disclosed by a third party not under an obligation of confidentiality with respect to such information, (iii) already within the party’s possession prior to its disclosure by the disclosing party or (iv) independently developed without use of the disclosing party’s confidential information.
18. ELECTRONIC COMMERCE. The parties agree that all communications and other records with respect to any transactions under this Agreement, including those required to be in writing, will have legal effect, validity and enforceability if provided in a retrievable and reproducible electronic or tangible medium.
19. ASSIGNMENT. Buyer may not assign any of its rights or delegate any of its duties or obligations under this Agreement without the prior written consent of Seller, which may be given or withheld in Seller’s sole discretion. This Agreement may be performed, and all rights hereunder against Buyer may be enforced, by Seller or by any subsidiary or affiliate of Seller.
20. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of Seller and Buyer respecting its subject matter and supersedes any prior or contemporaneous understandings. The Agreement may not be amended or rescinded except in a written document signed by Seller and Buyer.
21. COURSE OF DEALING. No course of dealing, course of performance or usage of trade, if any, will constitute a waiver, modification, change or supplement to, or serve to explain or interpret, the Agreement.
22. WAIVER. Waiver by Seller of any default by Buyer will not constitute a waiver of any subsequent default, whether or not the Agreement provides for delivery of Products in installments.
23. SEVERABILITY. The invalidity or unenforceability of any term or provision of this Agreement will not affect the validity or enforceability of any of the other term or provision hereunder, and if any term or provision of this Agreement is held to be invalid or otherwise unenforceable to any extent, such term or provision will be construed as if it were written so as to effectuate to the greatest possible extent the expressed intent of the Agreement, and the remainder of the Agreement will not be affected thereby and will remain valid and enforceable.
24. MEDIATION. All disputes arising out of or related to this Agreement or the Products, and not resolved by Seller and Buyer, will initially be submitted to mediation. The parties will share the mediator’s fee and other mediation fees equally. The mediation will be held in Shelby County, Tennessee, unless another location is agreed upon. Agreements reached in mediation will be enforceable as settlement agreements in any court having jurisdiction thereof.
25. GOVERNING LAW; VENUE. The laws of the State of Tennessee (without giving effect to its conflicts of law principles) govern all matters relating to this Agreement, including torts. With respect to any shipment of Products outside the U.S., the United Nations Convention on Contracts for the International Sale of Goods will not apply. All legal actions or proceedings arising out of or relating this Agreement will be brought in a court of competent jurisdiction in Shelby County, Tennessee, and each party submits and consents to the jurisdiction of said courts and waives any claim that any such action or proceeding has been brought in an inconvenient forum.