DBW Metals Recycling Sales Order Terms
Effective Date: January 1, 2009
TERMS & CONDITIONS OF SALE
DBW & Associates Inc. dba DBW METALS RECYCLING
Anaheim, California USA
1. ACKNOWLEDGEMENT. Buyer acknowledges having received and approved a copy of this Sales Contract. Buyer accepts all of the terms and conditions of this Sales Contract by receiving an electronic copy, or a facsimile of this Sales Contract or by accepting delivery of any of the Goods identified on this Sales Contract (?Goods?).
2. SALES CONTRACT. This Sales Contract sets forth the entire agreement between the parties regarding this transaction. No waiver or modification of any of the terms or conditions hereof nor any additional or inconsistent terms shall be effective against Seller unless approved in writing by an officer of Seller. In the event that Buyer has or hereafter submits a purchase order or other document to Seller regarding this transaction and such document contains any additional or inconsistent terms, such additional or inconsistent terms shall be deemed material alterations within the meaning of California Uniform Commercial Code section 2207(2)(b) and shall not become a part hereof unless approved in writing by an officer of Seller.
3. NO WARRANTY OR GUARANTEE. SELLER MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR THE MECHANICAL PROPERTIES OF THE GOODS. EXCEPT ONLY THAT SELLER WARRANTS THAT THE GOODS TO BE SOLD OR CONVERTED/EXCHANGED BY SELLER PURSUANT TO THIS SALES CONTRACT SHALL SUBSTANTIALLY CONFORM TO THE DESCRIPTION SET FORTH ON THE SALES CONTRACT. SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. Buyer acknowledges that Seller has made no representations, warranties or covenants of any kind regarding this transaction except as expressly set forth in this Sales Contract.
4. DELIVERY. Unless otherwise approved in writing by Seller, all Goods sold or exchanged by Seller under this Sales Contract shall be delivered to Buyer at the address set forth on the Sales Contract hereof. Buyer acknowledges that the delivery date set forth on the Sales Contract is an approximate date only and that the actual date of delivery may vary due to freight schedules, and other causes. A delivery which is made within thirty (30) days of the date set forth on the first page of this Sales Contract, and which does not vary by more than five percent (5%) of the quantity specified in this Sales Contract shall constitute full compliance by Seller with the delivery terms hereof.. Any deliveries which are postponed at the request of Buyer, and which are consented to by Seller shall be on a "bill and hold" basis and all expenses incurred by Seller as a result thereof shall be for Buyer's account. Seller shall provide any appropriate shipping documents. All expenses incurred due to changes or delays to shipping documents shall be at Buyer?s expense.
5. EXCUSABLE DELAY. Notwithstanding anything herein to the contrary, Seller?s performance hereunder shall be suspended where prevented or hindered by causes beyond the control of Seller, such as accidents, strikes or other labor disturbances, fire, flood, earthquake, natural disaster, war, civil disturbance, governmental or military order, sabotage, equipment failure or repair, plant shutdown, theft, acts of terrorism, or acts of God. If Seller?s performance is delayed for more than one month as a result of such event, Seller shall have the right to terminate any remaining performance of Seller under this Sales Contract. Seller hereby advises Buyer to carry its own insurance to protect itself against loss upon the occurrence of any such event.
6. RISK OF LOSS. Title and risk of loss and damage to any Goods subject to this Sales Contract shall pass to Buyer immediately upon loading of the Goods on the carrier's trucks, rail cars or vessels, except that risk of loss on "bill and hold" Goods shall pass to Buyer on such loading or invoicing by Seller, whichever occurs first. Unless otherwise provided on this Sales Contract, Seller shall have no obligation to insure any Goods. Buyer consents to any chartering or other transportation arrangements made by Seller. If Buyer has any particular requirements regarding chartering or transportation arrangements, Buyer must notify Seller thereof at least thirty (30) days prior to the scheduled date of shipment or delivery. Seller reserves the right to reject any such requirements which are unacceptable to Seller.
7. PRICE; TAXES. The purchase price for the Goods is payable in United States currency without deduction or offset, and free of any exchange unless provided otherwise herein. Any taxes, levies or other charges which may be imposed or levied on the sale or conversion/exchange of the Goods by Seller shall be paid by Buyer. Buyer shall be responsible for all personal property taxes imposed on its scrap materials and any taxes based or measured upon Buyer?s net income.
8. LATE PAYMENT CHARGE. If Buyer fails to make any payment required hereunder when due, Seller shall have the right without notice to impose a late payment fee equal to the greater of ten percent (10%) per annum or the Wall Street Journal-Western Edition prime rate plus two percent (2%) on the unpaid amount, due on demand, but in no event to exceed the maximum charge permitted by law.
9. CLAIM NOTIFICATION. Buyer must notify Seller in writing of any claims of rejection, downgrades, defectiveness, weight shortages, or other nonconformity of Goods so that the Seller actually receives the written notice within two (2) business days after Buyer has received the Goods or within thirty (30) calendar days after unloading of the vessel, whichever occurs first. If Seller does not receive a timely written notice of claim, Buyer has waived any rights to assert any claims of rejection, downgrades, defectiveness, weight shortages, or other nonconformity of Goods.
10. CREDIT APPROVAL. Buyer acknowledges that Seller's obligations under this Sales Contract are subject to Seller's approval of Buyer's credit. Seller shall have the continuing right until the time of shipment to approve or disapprove of Buyer's credit. If at any time prior to shipment of all of the Goods subject to this Sales Contract Seller becomes dissatisfied with Buyer's credit for any reason, Seller may, in its sole discretion, elect to (i) require payment in full for all Goods before shipment of any remaining Goods, (ii) require satisfactory security or personal guaranties, or (iii) cancel this Sales Contract. If Seller elects option (iii) above, Seller shall refund any advance payments made by Buyer less expenses incurred by Seller and Buyer shall return at Buyer?s expense all Goods previously shipped by Seller; Seller shall have the right to reclaim such Goods, wherever located, without notice, if Buyer fails to return such Goods promptly.
11. LIMITATION OF DAMAGES. Buyer's damages on account of a breach or repudiation hereof by Seller shall be limited to the difference between the contract price and the market price of the Goods, on the date of breach. In no event shall Seller be liable for any consequential, incidental or exemplary damages, including but not limited to lost profits.
12. RIGHT OF OFFSET. In the event that Buyer is delinquent on any payments or amounts owed to Seller pursuant to the terms of this Sales Contract or any other Sales Contract between Seller and Buyer, Seller, upon 3 days written notice, shall have the right to offset any such outstanding amounts against payments, deposits or amounts Buyer, owes Seller, its divisions and affiliates. Seller also has the right to divert the Goods to another buyer, and offset any costs incurred due to reselling Goods, including, but not limited to market losses, interest-cost, freight costs, demurrage fees, destination port fees, legal fees, or other expenses incurred. Seller reserves the right to cancel all existing Sales Contracts whether shipped or not.
13. DISCLAIMER, RELEASE AND INDEMNITY. Buyer acknowledges that the Goods were packaged according to specifications known to and/or provided by Buyer. Buyer?s inspection of the Goods shall be deemed conclusive and binding upon the parties, and upon subsequent acceptance of such Goods by Buyer, Buyer accepts sole responsibility for the Goods. Buyer further acknowledges that the Goods may contain certain materials known, suspected, or alleged to be hazardous, including, without limitation, aluminum, lead, beryllium, mercury, chromium, copper, zinc, iron, manganese, titanium, and nickel. Buyer acknowledges receipt, review, and understanding of Seller?s Material Safety Data Sheet(s) applicable to the Goods, including the warnings and recommendations as to necessary or advisable health and safety precautions provided therein as appropriate for Buyer?s operations. Buyer further acknowledges that (a) Buyer is a purchaser of raw and/or bulk materials, (b) Seller is unaware of the specific uses Buyer intends to put the Goods, (c) Seller is unaware of the nature, extent, or environment of Buyer?s operations, and (d) Buyer is solely responsible for determining the appropriate health and safety precautions necessary for its use of the Goods. Buyer hereby waives and releases all claims, demands or liabilities, known or unknown, past, present, or future, that it may have against Seller that arise directly or indirectly from, or in connection with, or that relate in any way to, the generation, storage, use, release, treatment, melting or disposal of the Goods, including any alleged hazardous materials, substances, or waste contained in the Goods, under any applicable federal, state, foreign, or local law, regulations, or ordinances, specifically including, without limitation, CERCLA, RCRA, HASA, the Occupational Safety and Health Act, or any other federal, state, local, or foreign laws, regulation, or ordinance that concern the production, handling, presence, use, treatment, or clean up of or responsibility for any hazardous material, substance or waste (?Environmental Claims?). Buyer further agrees to hold Seller harmless and indemnify Seller against third party claims, including court costs, expert costs, and reasonable attorney fees incurred by attorneys of Seller?s choosing, for (a) any Environmental Claims, (b) any other claim, action, or demand related to the Goods or use of the Goods against Seller, Seller?s agents, and Seller?s employees, resulting from (i) the breach of any representation or warranty by Buyer set forth herein, (ii) injury to or death of persons and/or damage to or loss of property allegedly caused by the Goods or use of the Goods, and (iii) the negligent acts or omissions of Buyer to the fullest extent allowed by law.
14. SEVERABILITY. If any provision of this Sales Contract shall be found to be invalid or unenforceable, that shall not affect the remainder of this Sales Contract. The offending provision shall be reformed so as to make it as near as possible in intent and effect as originally written but yet be valid and enforceable.
15. GOVERNING LAW; ATTORNEYS FEES. This Sales Contract shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles. No course of dealing or performance between the parties shall be utilized in interpreting this Sales Contract. In the event of any dispute arising out of or otherwise relating to this Sales Contract or for the interpretation or enforcement hereof, the matter shall be decided by the State courts of the State of California, County of Orange, which shall have exclusive jurisdiction and venue over this Sales Contract and transaction. Seller and Buyer hereby agree to such exclusive jurisdiction and venue. The prevailing party in any dispute or action between the parties shall be entitled to recover its reasonable attorneys' fees, costs, and expert costs including any fees and costs incurred in enforcing any judgment hereon. This Sales Contract is entered into at Anaheim, County of Orange, California USA.
16. AUTHORITY. If Buyer is a corporation, partnership or other entity, the person executing this Sales Contract on behalf of Buyer hereby represents and warrants to Seller that this Sales Contract has been duly authorized by Buyer and is a legal and valid binding agreement of Buyer, and that he/she has been duly authorized to execute and deliver this Sales Contract on behalf of Buyer.
17. ASSIGNMENT AND BINDING EFFECT; NON-WAIVER. This Sales Contract shall inure to and shall be binding upon the parties hereto and their respective heirs, representatives, successors and assigns. In the event that Seller consents in writing to waive any of the provisions hereof with respect to a particular matter or event, that shall not constitute a waiver of such provision with respect to any other matter or event.
18. INTERNATIONAL ARBITRATION ADDENDUM. Notwithstanding anything to the contrary in Section 17 hereof, in the event that the Buyer is domiciled other than in the United States (including but not limited to its territories and possessions), Canada or Mexico, any dispute, controversy or claim arising out of or relating to this Sales Contract or transaction or breach hereof shall be finally settled under the Rules Arbitration in accordance with the said Rules The arbitration rules shall be governed by CIETAC when contract is signed and/or material is delivered to China. The arbitration rules shall be governed by ARBITRATION ACT OF KOREA (Amended by Act No.6083 as of Dec. 31, 1999) when contract is signed and/or material is delivered to Korea. The arbitration rules shall be governed by Arbitration Act 1952 (Act 93) when contract is signed and/or material is delivered to Malaysia. The arbitration rules shall be governed by Singapore International Arbitration Centre when contract is signed and/or material is delivered to Singapore. The arbitration rules shall be governed by The Indian Arbitration and Conciliation Act, 1996 (No.26 of 1996) when contract is signed and/or material is delivered to India. The arbitration rules shall be governed by The Arbitration Association of The Republic of China when contract is signed and/or material is delivered to Taiwan. The arbitration shall be conducted before a panel of three (3) arbitrators, unless the parties agree on the selection of a single arbitrator. The place of arbitration shall be in the country in which the contract was signed and/or goods are delivered. The language of arbitration shall be English. The award of the arbitrators shall be final and binding on the parties, and each party hereby waives to the fullest extent permitted by law any right it may otherwise have under the laws of any jurisdiction to any form of appeal. Seller retains the right to seek pre-arbitral relief pursuant to Section 17 of this Agreement or through the Pre-arbitral Referee Procedure. Currency of the award is to be in $US Dollars. The parties may at any time, without prejudice to any other proceedings, seek to settle any dispute arising out of or in connection with the present contract. Arbitration costs, attorney fees and interest (interest to be U.S. Prime + 1%) are to be paid by the loser.
When possible, the list of arbitrators shall not be of the country of origin, the seller will have the right to choose from the list of arbitrators or from arbitrators outside of the list.
Buyer agrees to a mandatory mediation before or at the time of filing any request for arbitration.
19.TERMS AND CONDITIONS OF DEPOSIT FOR GOODS. When a deposit is required it shall be paid within three (3) business days from date of this Sales Order, via wire transfer. (See below for wire information)
Any wire transfer fees shall be for the account of Buyer.
Full payment for each container-load of goods, less deposits received by DBW, shall be forwarded by Buyer, in U.S. Dollars, via wire transfer, no later than 10 days prior to scheduled arrival of the container-load of goods at its destination port, unless otherwise
stated on this Sales Order.
In the event of breach by Buyer, DBW will notify Buyer in writing of Buyer?s breach and DBW?s intention to re-sell the contracted goods. Buyer will then have three (3) business days to remedy the situation by making payment via wire transfer. This written notice may be provided by e-mail or facsimile, and will be deemed complete upon successful transmission by DBW.
In the event that Buyer fails to remedy its breach within three (3) business days after notice is given, DBW may divert and re-sell any affected container-load of goods in any commercially reasonable manner. Buyer and DBW agree that due to the price fluctuations inherent in this industry, three (3) business days shall constitute commercially reasonable notice of DBW?s intention to re-sell, and exercise their rights pursuant to Paragraph12/Right of Offset, stated herein.
Remit Wire Transfers to: Information available upon request
20. DEPOSIT MARGIN REQUIRMENT. Where, Seller/DBW Metals Recycling requires a deposit to be used in case of Buyer?s inability to meet the terms and conditions stated within this document, and Should this margin requirement deposit not be sufficient enough to cover any subsequent changes in the market value stated on this Sales Order, Buyer may be required to send an additional deposit to cover this change in the market value during the time this Sales Order is in effect.
If Buyer fails to honor our request and pay the additional deposit required within 3 business days of such request, DBW Metals Recycling has the right to cancel this Sales Order and exercise their rights pursuant to Paragraph12/Right of Offset, stated herein.