The sale, delivery, production, shipment, and quotations by Jacob Tubing L.P. (the “Seller”) of all goods, products, or services (the “Product”) are subject to the terms set forth below (the “Contract”). These terms and conditions shall not be superseded by any other terms or conditions in the
purchase order or any other document of the purchaser of the Product (the “Buyer”). This Contract merges and supersedes all prior negotiations or agreements of the parties, either written or oral, made either prior to or contemporaneous with this Contract. This Contract shall not be modified or amended except by a subsequent written instrument executed by the parties which expressly supersedes the provisions of this Contract. This Contract, together with its attachments, constitutes the complete, exclusive and final agreement between Buyer and Seller. Any additional or different terms provided by Buyer in subsequent purchase orders or other documents shall not be binding. The rights and obligations under Sections 3, and 5 through 22 will survive the cancellation, termination or expiration of this Contract.
Unless stated otherwise in the order confirmation, deliveries are made FOB (pursuant to Incoterms 2010 or the current version) Seller’s facility or warehouse as selected by Seller in its sole discretion. Unless otherwise agreed in writing, details on delivery times are only approximate. A
delivery period only commences when all details of the execution have been clarified and both parties agree on the terms of the order. Agreed delivery dates shall be shifted accordingly. Any change made to the scope shall result in a corresponding extension of the delivery period once the order has been accepted by Seller. All quantities are subject to Seller’s reasonable production capabilities. Seller has the
right to make partial deliveries, and where reasonable or customary, ship overages and underage’s of weight, length, size and/or quantity and may invoice for same. Seller’s delivery obligation is subject to the timely and proper fulfilment of Buyer’s obligations. Seller is entitled to postpone delivery as long as Buyer has failed to fulfill all payment obligations arising out of previous deliveries without justification. In the
event that prepayment has been agreed, the deadline for delivery begins to start only after receipt of the full invoice amount. In the event of call-off contracts and/or blanket purchase orders, binding quantities are to be specified at least (one) 1 month prior to the delivery date by call-offs. Additional costs arising as a result of delayed call-offs or subsequent amendments to a call-off or blanket purchase order regarding time or quantity by the Buyer shall be borne by Buyer.
Unless stated otherwise in the order confirmation, all prices are FOB (pursuant to Incoterms 2010 or the current version) Seller’s facility or warehouse as selected by Seller in its sole discretion and include packaging and handling. Prices do not include installation, commissioning and assembly costs, freight, postage or insurance costs. In the event that no other prices are agreed in writing, Seller’s current list prices shall apply. Seller may, by giving thirty (30) days’ prior written notice thereof to Buyer at any time during the Contract period, change the price of the Product and terms of delivery and shipment. Such changes shall be applicable to any Product shipped hereunder on and after the date the changes become effective, notwithstanding the fact that Buyer may have requested delivery of such Product prior to Seller’s notice to Buyer of such changes. This provision shall not apply to fixed price contracts. Deliveries in excess of the order will be invoiced separately. All payments shall be made in U.S. dollars in cash, without any deductions within thirty 30 days from the date of the invoice. Payments are only considered settled if Seller can dispose of the amount. For any past-due balances a service charge of 1.5% per month will be charged until final payment is received. Buyer is not entitled to retain, setoff, and deduct any amounts due under this Contract or any other agreement in the event Seller is in breach of this Contract or any other agreement with Buyer, or provides defective or nonconforming goods or services. Notwithstanding any dissenting provisions by the Buyer, Seller is entitled to offset the Buyer’s payments first with older claims due against the Buyer under the Contract or any other agreement between Seller and Buyer; Seller will inform Buyer of any type of offsetting.
Seller may, at its option, deliver from points other than that specified (but shall not be obligated to do so) provided that such delivery shall not result in a higher delivered cost to Buyer. The Buyer shall inform in its order if transport insurance is desired; if so, transport insurance will be concluded at Seller’s reasonable discretion in favor of the Buyer. Any costs incurred in this respect shall be borne by Buyer. Where the Contract price provides for absorption by Seller of freight charges, wholly or in part, Seller shall have the right to select the means of transportation. If Buyer requires a means of transportation other than that selected by Seller, any extra cost incurred by reason of using such other means shall be paid by Buyer. If freight or other transportation costs are increased, Seller may add any such increase to the Contract price without prior notice thereof to Buyer. Unless stated otherwise in the order confirmation, the type of packaging will be left to Seller’s reasonable discretion. The weights, dimensions and tests fixed by Seller’s invoice shall govern unless proven to be incorrect. Buyer shall be responsible for asserting claims for losses or damages in transit directly against the carrier.
All claims must be received by Seller in writing within thirty (30) days after Buyer’s receipt of the Product and Buyer shall be conclusively deemed to have inspected and accepted the Product. Any deficiency in the quality or quantity of Products must be reported within five (5) days after such deficiency is or should have been discovered during the 30-days inspection-period. With respect to any defects incapable of discovery by Buyer (with the exercise of reasonable diligence) until in use or in processing in the manufacture of other products, all claims must be received by Seller in writing within five (5) days after Buyer learns (or, with the exercise of reasonable diligence, could have learned) of the alleged defect. Where the parties agree to inspection by Buyer at Seller’s plant, such inspection, acceptance and deficiency report must be made prior to delivery. All claims must be received by Seller at its address specified in the Contract. All claims not made in writing as specified above and received by Seller within the time periods specified above shall be deemed waived. Upon receipt of Buyer’s notification, Seller shall have the option of making inspection, analyses, and tests of the Product at Buyer’s premises or of requiring Buyer to send the Product or adequate samples thereof, at Buyer’s expense, to Seller or to a person designated by Seller for inspection, analyses and tests. No Product or sample shall be returned to Seller without prior written authorization from Seller. No inspection or any other actions by third parties are authorized or will be paid for by Seller, without Seller’s prior consent in writing.
Seller warrants to Buyer that (a) all new and unused goods and products furnished by Seller are (i) free from any security interest, lien or encumbrance (other than in favor of Seller for the unpaid balance of all amounts due Seller from Buyer with respect to the Product), (ii) non-infringing (with respect to United States patents and foreign patents corresponding thereto), and (iii) are free from defect in workmanship and material as of the time and place of delivery by Seller and that (b) all services furnished by Seller are performed properly under applicable industry standards as of the time and place of performance. As a matter of general warranty policy, Seller honors an original purchaser’s warranty claims in the event of failure, within six (6) months from the date of shipment by Seller, of warranted Products which have been used under normal conditions and in accordance with generally accepted industry practices. The foregoing are general policies only and may be expanded or limited for particular categories of goods and products or customers by written agreement signed by Seller from time to time. Such warranties extend only to Buyer. EXCEPT AS EXPRESSLY SET FORTH IN THE FIRST SENTENCE OF THIS SECTION 6, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY THAT THE PRODUCT SOLD HEREUNDER IS NON-INFRINGING, IS OF MERCHANTABLE QUALITY, OR THAT THE PRODUCT SHALL BE FIT FOR ANY PARTICULAR PURPOSE. THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE. SELLER SHALL NOT BE LIABLE TO BUYER OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, ECONOMIC, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT, T HIS CONTRACT, OR ANY BREACH OF THIS CONTRACT INCLUDING, BUT NOT LIMITED TO, ANY LOSS OR DAMAGE RESULTING FROM THE USE OF THE PRODUCT IN BUYER’S MANUFACTURING PROCESSES OR IN COMBINATION WITH OTHER MATERIALS. IF THE GOOD OR PRODUCT DOES NOT CONFORM TO THE WARRANTIES SET FORTH IN THIS SECTION, OR IF BUYER MAKES ANY OTHER CLAIM OF ANY SORT WHATSOEVER, INCLUDING THE CLAIMS SET FORTH ABOVE, AGAINST SELLER, BUYER’S EXCLUSIVE REMEDY SHALL BE LIMITED TO, AT SELLER’S OPTION, REPLACEMENT OR REPAIR OF THE PRODUCT OR REPAYMENT OF THE PURCHASE PRICE PAID BY BUYER (LESS reasonable depreciation based upon actual use), PROVIDED THAT In the event of SELLER’s breach of warranty or any other duty with respect to the quality of any services (including repair under warranty), Buyers exclusive remedy therefore shall be payment or credit for Seller’s actual charge therefore or, in the absence of an actual charge, the customary or reasonable charge for such services, and, if such breach also involves impairment of goods and products, the exclusive remedies available for breach of warranty with respect to the good OR PRODUCT. Any Product supplied by Seller hereunder to replace a Product shall be deemed supplied to Buyer subject to all of the terms and conditions of this Contract, including, without limitation, those concerning warranties, limitation of liability, remedies and damages, to the same extent as the Product. In the event Seller agrees to replace any Product or agrees to repay to Buyer the purchase price of any Product supplied by Seller to Buyer under this Contract pursuant to this portion of this Contract, Buyer agrees that it shall take reasonable steps, at Seller’s written request, to return to Seller (at Seller’s expense) the product for which replacement or repayment is sought. SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR ADEQUACY OF INFORMATION FURNISHED TO BUYER CONCERNING THE PHYSICAL CHARACTERISTICS AND MATERIALS OF, AND PROTECTIVE MEASURES TO BE TAKEN REGARDING THE PRODUCT. SELLER SHALL NOT BE LIABLE FOR ANY ERROR OR OMISSION IN THE PREPARATION OF SUCH INFORMATION. SELLER SHALL NOT BE LIABLE TO BUYER, BUYER’S EMPLOYEES, OR ANYONE IN CONNECTION WITH THE ACCURACY, ADEQUACY OR FURNISHING OF SUCH INFORMATION.
Buyer agrees and accepts that ownership of any intellectual property (under trademark, trade secret, patent, copyright or other law) of Seller shall remain with Seller. No right or license, express or implied, under any patent, copyright, trade secret or other proprietary right is granted hereunder. For purposes of this Contract, “Confidential Information” means (i) any trade secrets which shall include, without limitation, all information of any nature considered a trade secret under law and (ii) proprietary information, which as used in this Contract, without limitation, means any non-public technical, scientific or business information of Seller, including without limitation any information relating to Seller’s designs, formulas, samples, processes, laboratory or testing procedures, manufacturing processes, techniques or procedures, trade secrets, know-how, current and future products and services, research, financial information, procurement requirements, customer lists, business forecasts, marketing plans and information, relationships with third parties, and all terms and conditions and any other information relating to this Contract.
1. FORCE MAJEURE. Neither party shall be liable for its failure to perform hereunder if due to any event beyond the reasonable control of the party affected, including but not limited to acts of God, war, fire, bad weather, flood, accident, labor trouble or shortage, terrorism, civil disturbance, plant shutdown, equipment failure, voluntary or involuntary compliance with any applicable governmental regulation or order, or shortage or inability to obtain (on terms deemed reasonable by the party affected) any raw material (including energy), equipment or transportation, which materially impairs such party’s ability to so perform. Any quantities not delivered or accepted because of any such event shall be eliminated from the Contract without liability. Seller shall not be obligated to deliver the Product from other than the production or shipping points designated herein and shall not be obligated to rebuild or repair any damage or destruction to such production or shipping points in order to fulfill this Contract. Seller shall also not be obligated to obtain any raw materials or Product from sources other than its usual sources. During any period when Seller is unable to supply the Contract quantity of the Product, whether caused by the circumstances above or otherwise, Seller may allocate any available Product, among its customers, including its own subsidiaries, divisions and departments, on such basis as Seller deems fair and reasonable, and its failure, partial or otherwise, to make deliveries to Buyer shall not be a breach of this Contract.