SALES TERMS AND CONDITIONS – ACNIS Titanium & Alloys

I. GENERAL

The following Terms and Conditions (the “Terms”) are applicable to all sales of metal bars, namely titanium bars, stainless steel bars, cobalt chrome bars, polymer bars, nickel alloys bars, and any other products (the “Products”) made by ACNIS TITANIUM & ALLOYS INC., a Delaware corporation with its principal office located at 1940 E. Devon Avenue, Elk Grove Village, IL 60007 (“Seller”), and the acceptance of any order is expressly conditioned upon Buyer’s consent to these Terms. No interlineations, deletions, modifications or amendments to these Terms shall be binding on Seller unless agreed to and accepted in writing by Seller, nor shall Buyer’s terms and conditions have any legal effect unless accepted by Seller in writing. The initiation of performance under the contract shall indicate Buyer’s acceptance of these Terms.

All sales are subject to written acceptance by Seller and Seller reserves the right to reject any order for any reason, or no reason at all, in its sole discretion. Buyer must respond to Seller’s written acceptance within twenty–four (24) hours of receipt of such confirmation if it wishes to cancel the order or: (i) Buyer will waive its right to cancel the order and (ii) Buyer will be deemed to have accepted these Terms.

II. PRODUCT INFORMATION; PRICE QUOTATIONS

The quotations or tenders are noncommittal and non-binding in nature. No contract shall arise until a written acknowledgment from Seller accepting Buyer’s order, is sent by Seller to Buyer. Seller will be entitled to adjust agreed prices on the basis of the average change in the cost price of the Products be delivered and/or activities to be performed by Seller. The adjustment of agreed prices and rates will apply as of the beginning of the first (1st) month after Buyer has been notified in writing of the adjustment.

The weights, dimensions, capacities, performance ratings, characteristics and other data on Seller’s catalogs, prospectus, circulars, advertisements, price lists, instructions sheets and website are mentioned only as general information. They are only approximate and shall not bind Seller.

III. DELIVERY

Unless otherwise specified by the parties in writing, the Products are to be delivered “ex works”, at Seller’s place of business (as “ex-works”/ EXW is defined by Incoterms 2020). The method and agency of transportation and routing will be designated by Seller. In the event Buyer requests alternative shipment or routing, the resulting alternative packing, shipping and transportation charges will be for Buyer’s account.

Buyer shall ensure that the conditions necessary to receive the Products and the correct operation of any work to be carried out under these Terms, are fulfilled. Buyer shall be responsible for transporting the Products to the relevant site and shall ensure, to this effect, that such site isappropriately prepared to receive the Products.

IV. DELAYS IN DELIVERY

Any specific shipping date designated in writing signed by Seller shall be interpreted as estimated and in no event shall dates be construed as falling within the meaning of “time is of the essence”. Seller shall not be responsible for any delays in filling orders, nor shall it be liable for any loss or damages resulting from such delays regardless of whether such delays are due to force majeure or otherwise.

Under no circumstances shall Buyer or Buyer’s customers be entitled to any damages for Seller’s failure to ship on time, and Buyer agrees to indemnify, defend and hold Seller harmless against any costs and expenses related to any claims for lost profits or other consequential damages based on Seller’s failure to deliver timely.

If Buyer does not accept or pick up the Products at the date specified in the order or later agreed to by Seller, the delivery of the Products shall nevertheless be deemed accepted by Buyer which shall therefore pay for the Products delivered. The storage of the Products arranged by Seller will be at the risk and expense of Buyer. In addition, Seller shall be entitled to liquidated damages from the date on which delivery is deemed to be accepted by Buyer, payable at a rate of zero point five per cent (0.5%) of the contract price, in whole or in part, for each commenced week of delay. At its sole discretion, Seller may decide to terminate the contract upon written notice to Buyer and Seller shall be entitled, to the exclusion of any other remedy for Buyer’s failure to take the Products, to compensation for the loss it suffered as a result of Buyer’s delay, including any consequential and indirect loss, as well as any expenses properly incurred in performing the contract and not covered by payments received for the Products delivered.

V. PAYMENT

Unless otherwise stated, payment for the Products shall be received by Seller within thirty (30) calendar days net from the date of the issuance of the invoice for the same period, by wire transfer into Seller’s account. In the event Seller feels insecure concerning payment by Buyer, Seller reserves the right to require cash or letter of credit payment terms. The price does not include any present or future Federal, State or Local property, sales, use, excise, license, gross receipts or other taxes or assessments which may be applicable to, imposed upon or result from this transaction or any work performed in connection with these Terms and/or the Products.

In the event payment is not received when due, interest shall be due at the rate of eight percent (8%), or the maximum permitted by law, on the unpaid portion of the invoice sum for each period of thirty (30) calendar days or part thereof from the due date. Seller has the right to refuse to deliver the Products if Buyer is past due on any of its debts to Seller.

Buyer shall pay all of Seller’s costs of collection of any amounts past due, including, but not limited to, attorneys’ fees, court costs, witness fees, travel and lodging. Seller will be entitled to apply payments made by Buyer first to pay those claims it deems appropriate, including, but not limited to, interest, late charges, and costs of collection.

Buyer, or its affiliates or assignees, will not be entitled to suspend its payment obligations to Seller, claim any right to compensation and/or to offset its payment obligations with any obligations of Seller to Buyer, with such obligations being those set forth in these Terms or other purchase contract between Buyer and Seller. If Buyer does not fulfill its payment obligations to Seller completely or within the applicable payment period, Seller will be entitled to suspend its obligations to Buyer completely and/or not to perform them. Seller will also be entitled to terminate the contract by notifying Buyer in writing.

VI. SECURITY INTEREST

In order to protect and secure payment of all debts due and owing from Buyer and until Seller has been paid in full, Buyer hereby grants to Seller a security interest in the Products, and all proceeds and all accounts receivables resulting from the sale of the Products. In connection therewith, Buyer hereby authorizes Seller to take all necessary steps to file such financing statements and exhibits with the proper authorities, including the filing of a UCC-1 financing statement.  

Until Buyer has paid for the Products in full, Buyer shall not pledge, mortgage, encumber, or create or suffer to exist a security interest in the Products in favor of any person other than Seller unless written approval of such other security interest is given by Seller. Additionally, Buyer agrees to keep the Products insured to their full value until payment is received by Seller. In the event Buyer sells the Products to a third party before payment in full is received by Seller, Buyer agrees to secure its security interest in the Products at the time of sale to its customer in order toprotect Seller’s interests to the greatest extent possible.

VII. INSPECTION; RETURNS

Unless Seller receives a written complaint with full particulars from Buyer regarding any defective Products or other complaints within five (5) business days from the date the Productsare delivered, the Products shall be deemed to have been delivered in good condition and that the delivery is accepted. Acceptance of the returned Products does not imply acknowledgment by Seller of the reason for the return. The Products returned by Buyer to Seller will remain at Buyer’s risk and Buyer will owe the agreed amounts until Seller has credited Buyer for these Products. The Products accepted by Buyer from Seller, which Buyer has put fully or partly into use, treated, processed or delivered to others will be considered to conform to the contract.

VIII. LIMITED WARRANTY OF PRODUCTS

Seller’s warranty is as set forth in its limited warranty. Seller does not authorize Buyer to provide any other warranties to end users beyond that granted in Seller’s limited warranty. Buyer shall indemnify, defend and hold Seller and any affiliated companies harmless against any claims made by third parties based on any representation or warranty made by Buyer that differs in any way from Seller’s limited warranty.

IX. INDEMNIFICATION

Except as otherwise provided for herein, Buyer, on its own behalf, and behalf of its parent, subsidiary(ies), affiliated and related companies, and their respective predecessors, past and present officers, directors, shareholders, agents, employees, legal representatives, successors and assigns (the “Indemnifying Parties”) assumes liability for, and shall pay when due, and shallindemnify, reimburse and hold Seller, and its parent, subsidiary, affiliated and related companies, and their respective predecessors, past and present officers, directors, shareholders, agents, employees, legal representatives, successors and assigns (the “Indemnified Parties”) harmless from and against any and all Claims (defined below), directly or indirectly relating to or arising out of the acquisition, use, purchase, shipment, transportation, delivery, lease or sublease, ownership, operation, possession, control, storage, return or condition of the Products (regardless of whether the Products are at the time in the possession of the Indemnifying Parties), the falsity of any representation or warranty of Buyer, or Buyer’s failure to comply with these Terms. The foregoing indemnity shall cover, without limitation, any claim for negligence, gross negligence, or liability in tort.

“Claims” means any and all liabilities, losses, damages, actions, suits, demands, claims of any kind and nature and all costs and expenses whatsoever to the extent they may be incurred or suffered by the Indemnified Parties in connection with the Products (including, without limitation, reasonable attorneys’ fees and expenses), fines, penalties (and other charges of applicable governmental authorities), damage to or loss of use of property (including, without limitation, consequential or special damages to third parties or damages to Buyer’s property), or bodily injury to or death of any person(s) (including, without limitation, any agent or employee of Buyer, user of the Products, or any other person).

X. INTELLECTUAL PROPERTY RIGHTS

All intellectual property rights to, ownership of, and interest in all Products, goods, trademarks, trade names, logos, distinctive marks, designs, and other materials created and/or made available by Seller hereunder or within the framework of the relationship between Buyer and Seller (the “Intellectual Property”) are vested exclusively in Seller. Buyer shall not reproduce, modify, transfer, grant, assign, license or use the Intellectual Property, except in accordance with these Terms.

Buyer shall not remove or alter indications concerning intellectual property rights and concerning the confidential nature of information from Products, goods, services, programs, works, distinctive marks, inventions, designs, models and other materials created and/or made available by Seller and the Products delivered.

In the event the Products are produced by Seller in accordance with specifications submitted by Buyer, Buyer shall indemnify Seller against all loss, damages, costs and expenses awarded against or incurred by Seller in connection with or paid or agreed to be paid by Seller in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from Seller’s use of Buyer’s specifications.

Seller makes no warranty concerning the appropriateness of the Products to the purposes for which Buyer or its customer are acquiring same. Moreover, Seller makes no warranty that the Products or other intellectual property of Seller do not infringe the rights of third parties.

The foregoing shall not be construed to include any agreement by Seller to accept any liability whatsoever with respect to Buyer’s own or third-party equipment, documents or materials used in combination with or related to the Products.

XI. CONFIDENTIALITY

A party (the “Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business, its Products, goods and services which the Receiving Party may obtain. The Receiving Party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving Party’s obligations under the contract, and shall ensure that such employees, agentsand subcontractors comply with the obligations set out in this section as though they were a party to the contract. The Receiving Party may also disclose such of the Disclosing Party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This section shall survive termination of the contract.

XII. FORCE MAJEURE

Neither party shall be in breach of the contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from events, circumstances or causes beyond its reasonable control including, but not limited to, Acts of God, flood, drought, earthquake or other natural disaster; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations; nuclear, chemical, biological contamination or sonic boom, epidemic or pandemic; any law or any action taken by a Government or a public authority including without limitation imposing an export or import restriction, quota or prohibition, and the collapse of buildings, fire, explosion or accident (a “Force Majeure Event”).

Buyer shall use all reasonable effort to mitigate the effect of a Force Majeure Event on the performance of its obligations. If a Force Majeure Event prevents, hinders or delays Seller’sperformance of its obligations for a continuous period of more than six (6) months, Seller may terminate the contract immediately by giving written notice to Buyer.

XIII. TERMINATION

Seller may terminate or suspend any contract if Buyer is in default of the payment of any obligations pursuant to or any contract between the parties, or if in the sole judgment of Seller, Buyer’s financial condition and responsibility has become materially impaired. In addition, Seller shall have the right to recover damages for nonperformance, and any unpaid installments due on account of this or any other contract between the parties shall become immediately due and payable.  

In case of termination or suspension due to force majeure, Seller reserves the right to demand immediate payment for the Products and any raw materials, materials, parts and other goods it purchased, reserved, processed or produced for the performance of an order. Buyer is bound to accept delivery of the Products and such materials, parts, or goods. Failure to accept delivery will give Seller the right to store, sell, or scrap the Products or such materials, parts or goods at Buyer’s expense and risk.

Seller will be entitled to suspend or terminate the contract unilaterally upon written notice to Buyer, with immediate effect, fully or in part if:

Seller shall not be liable with respect to Buyer for any damages arising from suspension ortermination of the contract for the aforementioned reasons.

If the contract is suspended or terminated, performance of the contract already received by Buyer and the payment obligations of Buyer in connection with it will remain. The amounts invoiced by Seller for work actually performed prior to or upon termination of the contract will be immediately due and payable after termination. Buyer agrees to pay any of Seller’s costs, damages, attorneys’ fees and other expenses associated with Seller’s termination of any contract with Buyer pursuant to the terms of this section. Seller’s right of termination shall be without prejudice to any claims or other rights or remedies which Seller may have against Buyer by operation of law or otherwise.

XIV. GOVERNING LAW; JURISDICTION

These Terms and all transactions between Seller and Buyer are governed by the laws of Illinois,without reference to conflict of laws principles. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. In the event of a dispute arising from or relating to these Terms, which is not resolved by negotiation between the parties, the parties hereby agree to exclusive personal jurisdiction in the courts located in Chicago, Illinois.

XV. ENTIRE AGREEMENT

These Terms constitute the sole terms and conditions of the contract between Buyer and Seller.  No other terms, conditions, or understanding, whether oral or written, shall be binding upon Seller, unless hereafter made in writing and signed by Seller’s authorized representative and, in the case of printed matter, also initialed by such representative next to such printed term or condition.

XVI. SEVERABILITY

Should any provision of these Terms be judicially declared unenforceable, that provision shall be deemed stricken and the remainder shall continue in full force and effect insofar as it remains a workable instrument for effectuating the intents and purposes of the parties. The parties further agree to renegotiate any so severed provision to bring the same within applicable legal requirements to the greatest extent possible.

XVII. ASSIGNMENT

Buyer shall not assign or transfer these Terms or any related contract or purchase order without the prior written consent of Seller. Seller shall expressly be permitted to assign or transfer, without the prior written consent of Buyer, Seller’s right to receive any or all of the payment due from Buyer under these Terms.