PHILIP CORNES AND COMPANY LIMITED WEB SITE AND TW METALS CORPORATE AND BUSINESS UNITS WEB SITES
1. APPLICATON OF CONDITIONS. All sales of products (the Product) are made pursuant
to the terms and conditions herein and all orders are received with the understanding
that they are placed under those terms and conditions.
2. MODIFICATION. This agreement may not be amended, changed or modified except
by a writing duly executed by Buyer and Seller, and it is expressly understood
that in the case of Seller, any such writing shall be executed by an authorized
representative of Seller.
3. PRICES. Prices are subject to change without notice. All orders are accepted
subject to Seller's price in effect at the time of shipment. Seller reserves
the right to revise prices if there is a change in quantity, size, analysis,
finish or method and time of shipment differing from those covered in the original
4. PAYMENT. Buyer shall make payment to Seller in the manner set forth herein.
If in the judgment of Seller the creditworthiness of Buyer becomes impaired
at any time or Seller otherwise becomes insecure, Seller shall have the right
to require payment in advance for making any future shipments and Seller may,
upon seven days' written notice to Buyer, declare that the unpaid purchase prices
of any Products not made when due shall accrue interest at the rate of 18 percent
per annum or at the highest interest rate permitted by applicable law, whichever
rate is less. At Seller's option, upon any breach or default by Buyer hereunder,
any outstanding debt obligation or liability of Buyer to Seller, under this
agreement or otherwise, shall be immediately due and payable. Time is of the essence
with respect to all payments due to Seller from Buyer hereunder, and, unless
in each instance waived by Seller in writing, timely payment shall be a condition
precedent to any subsequent deliveries of Products or other performance by Seller
of its duties and obligations hereunder.
5. SECURITY INTEREST. Seller shall have, and Buyer hereby grants to Seller,
a security interest in all of the Products, and in any proceeds thereof, to
secure payment of the purchase price of the Products, and seller shall have
all of the rights and remedies of a secured party under the Uniform Commercial
Code in force in the jurisdiction where Seller seeks to enforce any of such
rights or remedies. If requested by Seller, Buyer shall sign and deliver to
Seller such documents, in a form acceptable to Seller, as Seller may require
in order to confirm or perfect its security interest in the Products and proceeds
6. RISK OF LOSS. All risk of loss or damage to any Products shall pass from
Seller to Buyer upon Seller's delivery of such Products to the carrier designated
in the shipping instructions contained herein, or to a carrier reasonably selected
by Seller if such shipping instructions do not designate a carrier, for shipment
to Buyer. Any changes by carrier at destination for spotting, switching, demurrage
or other services shall be paid by Buyer. Any price quotations contained herein
are price terms only, and risk of loss or damages and shipping terms are as
separately provided in this agreement.
7. DEFECTIVE, NONCONFORMING OR REJECTED MERCHANDISE. Buyer shall inspect each
shipment of Products by Seller to Buyer immediately upon arrival at the shipments
destination, and within thirty days of each such arrival shall notify Seller
of (a) any defects in any of the Products contained in such shipment and (b)
any reason (other than any such defects) by which the Buyer claims any of such
Products are nonconforming goods or for which Buyer rejects any of such Products,
except that with respect to any claims for shortages, such claims must be made
within five days after receipt. If Buyer fails to give such notice in the manner
provided herein, all Products contained in any such shipment shall be deemed
to conform to the contract and Buyer shall be deemed to have accepted such Products.
If any model or sample was shown to Buyer, such model or sample was used merely to
illustrate the general type and quality of the Products and not to represent that
the Products would necessarily be that type or nature.
In the event Buyer so notifies Seller of any defects in any of the Products,
Buyer shall allow Seller the opportunity to inspect the Products in question,
and if requested by Seller, shall return any such Products to Seller. In the
event that Seller determines in its sole discretion that any defects in any
such Products were not caused by Buyer or others after Seller packaged same
for shipment to Buyer, Seller shall, at its option, either exchange, repair
or provide Buyer with a refund or credit for the purchase price.
8. BUYER'S INSPECTION. Where source inspection is made by Buyer, Buyer's inspector
shall be deemed to be the agent of the Buyer to accept material on Buyer's behalf
with complete authority to waive specified test or details of test procedure,
and to accept material which may deviate from formal specifications.
9. PERMISSIBLE VARIATIONS, SIZE AND QUANTITY. Seller does not accept responsibility
for size ordered to cleanup to finished dimensions unless such size has been
recommended in writing by Seller. All Products shall be furnished to mill standard
manufacturing variations and practices, and Seller retains the right to modify
or change composition, design and appearance of the Products if in its judgment
that is desirable. Quantities supplied shall be subject to customary variations
recognized by trade practice.
10. SELLER'S RIGHT OF RESALE. If Buyer breaches or repudiates any provision
hereof or fails to comply with this agreement, Seller shall have the right to
resell any undelivered Products ordered by Buyer, together with any Products
ordered by Buyer, together with any reclaimed by Seller or as to which Seller
may agree to accept return. Any such resales may be public or private, at wholesale
or retail, and may be held on one or more occasions and under such procedures,
terms and conditions as Seller may determine in its sole discretion. In the
event of any such resale, Buyer shall pay to Seller the amount by which the
purchase price set forth herein exceeds the amount received by Seller in any
public or private sale, plus all expenses of resale and all incidental expenses
or damages incurred by Seller as result of Buyer's breech or repudiation. The
parties agree that five days' written notice of any such resales is reasonable
notice to Buyer of such resale.
11. RELATIONSHIP OF PARTIES. The relationship between Seller and Buyer is solely
that of vendor and vendee, and Buyer is not and shall not be construed to be
a partner, joint venturer, employee, agent, representative of or with Seller
for any purpose whatsoever. Buyer does not and shall not have any right or authority
whatsoever to assume or to create obligation or responsibility, express or implied,
on behalf of or in the name of Seller or to bind Seller in any manner.
12. TAXES. Any tax imposed by any law on the sales of Products made or sold
by Seller shall be in addition to and a part of the sales price thereof.
13. FORCE MAJEURE. In the event that Seller is unable to carry out its obligations
hereunder due to acts of God or of the public enemy, war, insurrection, mob
violence, civil commotion or riots, strikes, lockouts, labor disputes, fires,
floods, earthquakes, epidemics, quarantine restrictions, freight embargoes,
shortages of labor or material, unusual delays in transportation, lack of shipping
facilities, unavoidable casualty, accidents, abnormal amounts of inclement weather
or unusually severe weather, changes in governmental policy, laws or regulations
(including but not limited to impositions of quotas or limitations of shipments),
or any other cause or causes beyond the control of Seller or the suppliers,
whether hereinabove specified or not, Seller shall be permitted to extend the
time of performances of its obligations to such extent as may be necessary to
enable Seller and its suppliers to complete performance in the exercise of reasonable
diligence after the cause or causes of delay have been removed. In the event
any such delay continues for a period of more than six months, either party
may terminate this agreement by so notifying the other party in writing.
14. CHANGES AND CANCELLATIONS. Should the Buyer desire to cancel, revise or
suspend this order for reasons beyond Buyer's control, Seller shall discuss
the matter promptly with Buyer and the parties shall do all possible to make
a mutually satisfactory agreement. In cases where the material has been manufactured
partially or completely for Buyer's requirement and the mill is unable to cancel,
Buyer will be informed of charges incurred to Buyer's account and Buyer agrees
to pay such charges promptly.
15. LIMITATIONS OF LIABILITY. In no event shall the amount of Seller's liability
for any breach or default hereunder exceed the purchase price paid or payable
by Buyer to Seller for the Products and in no event shall Buyer be entitled
to claim compensation for special, incidental or consequential damages for defective
goods or services, late delivery or nondelivery, nor shall Seller be liable
for Buyer's loss of profits or loss of any other kind or description whatsoever.
BUYER ACKNOWLEDGES THAT SELLER HAS NOT MADE AND SHALL NOT MAKE OR BE LIABLE
UNDER ANY GUARANTIES, WARRANTIES, OR REPRESENTATIONS, EXPRESS OR IMPLIED, IN
ANY MANNER OR FORM WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE OR PURPOSE, EXCEPT THOSE EXPRESSLY
SET FORTH HEREIN OR IN A WRITING DELIVERED BY SELLER TO BUYER, AND SELLER SHALL
NOT DIRECTLY OR INDIRECTLY, BE RESPONSIBLE OR LIABLE FOR ANY CLAIM, LOSS, DAMAGE,
LIABILITY, COST OR EXPENSE IN CONNECTION WITH, ARISING OUT OF OR RELATING TO
THE PRODUCTS, EXCEPT AS EXPRESSLY SET FORTH HEREIN.
16. RETENTION OF RIGHTS. The parties acknowledge and agree that Seller and
its suppliers have acquired various patents, trademarks, trade names and trade
secrets with respect to Products, and that matters relating to manufacture,
production and distribution of Products constitute confidential information
and trade secrets of Seller and its suppliers and are not commonly known or
accessible to the trade. No right, title or interest in or to Products generally,
or in any patents, trademarks, trade names, confidential information or trade
secrets relating to Products shall pass to Buyer under this agreement, and no
right is given to or acquired by Buyer to use or duplicate same, in part or
in whole, and Buyer shall receive such confidential information and trade secrets
in confidence and trust, without revealing same to any other person or entity.
17. ASSIGNMENTS. Buyer's rights, claims, duties and responsibilities under
this agreement may not be assigned, delegated or otherwise transferred in any
manner without the prior express written consent of Seller in each instance.
18. TERMINATION. In the event of any breach or default by the other party in
any of the terms or conditions of this agreement, or any other contract or arrangement
between the parties, either party may immediately terminate this agreement by
giving written notice to the other party. This agreement shall immediately terminate
without notice by or to, or other action by, either party in the event of any
assignment for the benefit of creditors or offer to make an extension to creditors
by Buyer; the insolvency (as such term is defined to the Uniform Commercial
Code) of Buyer; the commencement of any proceedings under any bankruptcy laws
by or against Buyer; the suspension or liquidation of Buyer's usual business;
or any transfer (either voluntary or involuntary) of a substantial part of Buyer's
property or assets other than in the ordinary course of business; provided,
however that in the event of any such termination, the terms and conditions
of this agreement shall continue to be binding upon the parties in connection
with all Products shipped by Seller to Buyer.
19. NOTICES. Any notice required or permitted to be given under this agreement
shall be in writing and shall be deemed to have been given upon personal delivery,
or forty-eight hours after mailing, be certified or registered United States
mail, return receipt requested, postage prepaid, addressed in accordance with
the addresses set forth herein, or such other addresses of which notice is so
20. ATTORNEYS' FEES. In the event any action is initiated for any breach of
or default in any terms or conditions of this agreement, then the party in whose
favor judgment shall be entered shall be entitled to have and recover from the
other party all costs and expenses (including attorneys' fees) incurred in such
action and any appeal therefrom.
21. LITIGATION. It is hereby irrevocably agreed that all actions, suits or
proceedings between Seller and Buyer arising out of, in connection with or relating
to this agreement or the interpretation, performance or breach of this agreement
shall be litigated in the State or Federal Courts in the County of Chester in
the State of Pennsylvania, except that Seller may institute and prosecute to
judgment in any court of competent jurisdiction an action, suit or proceeding
to effect collection of any monies due Seller from Buyer and Buyer shall reimburse
Seller for all costs and expenses (including attorneys' fees) incurred by Seller
in so doing. Buyer consents to the jurisdiction of such State of Pennsylvania,
waives the right to transfer or change venue of any litigation commenced in
any of such Courts, and waives personal service of all process upon Buyer on
the condition that all such process is served personally or by registered or
certified mail addressed to Buyer at Buyer's last known address.
22. GOVERNING LAWS. This agreement shall be governed by and interpreted in
accordance with the laws of the State from which the Products are shipped.
23. SEVERABILITY. If any provision of this agreement, or any portion of any
such provision, is held to be unenforceable or invalid, the remaining provisions
and portions shall nevertheless be carried into effect.
24. WAIVERS. Any action or proceeding relating to or concerning this agreement,
or any breach thereof, must be commenced within one year after the claim or
cause of action accrues and, if no action or proceeding is commenced within
such one year period, the party in whose favor the claim or cause of action
arises shall be deemed to have waived same. All rights and remedies of the parties
are separate and cumulative, and no one of them, whether exercised or not, shall
be deemed to be to the exclusion of any other rights or remedies and shall not
limit or prejudice any other legal or equitable rights or remedies which the
parties may have. Except as otherwise provided in this Paragraph 24, the parties
shall not be deemed to waive any of their rights or remedies under this agreement
relating to any Products, unless such waiver is in writing and signed by the
party to be bound, and no delay or omission on the part of either party in exercising
any right or remedy shall operate as a waiver of such right or remedy. A waiver
on any one occasion shall not be construed as a bar to or waiver of any right
or remedy on any future occasion.
25. HEADINGS. The headings contained in this agreement are for convenience
only and are not a part of this agreement, and do not in anyway interpret, limit
or amplify the scope, extent or intent of this agreement, or any of the provisions
of this agreement.
26. CONFLICTING PROVISIONS. The printed provisions of this agreement shall
be construed as consistent with and cumulative to any other provisions typed,
written or otherwise filled in and agreed to by both parties, but if such construction
is unreasonable such other provisions shall prevail to the extent of any consistency
with such printed provisions.