Terms and Conditions

 

Terms of Use

NOTE: THESE TERMS OF USE APPLY WHEN ACCESSING OR USING THIS WEBSITE.

1. Acceptance of Terms

Use of this website is offered to you on your acceptance of these Terms of Use, our Privacy Policy, and any additional terms and conditions set forth on this website. If you do not agree to be bound by and comply with all of the foregoing, you may not access or use the information or services in this website. If you do not agree to any additional specific terms which apply to particular Content (as defined below) or to particular transactions concluded through this website, then you should NOT use the part of the website which contains such Content or through which such transactions may be concluded, and you should not use such Content or conclude such transactions. In addition, as a condition of your use of this website, you represent and warrant to Alamo Iron Works that you will not use this website for any purpose that is unlawful, immoral, or prohibited by these Terms of Use. You represent and warrant that you possess the legal right and authority to agree to these Terms of Use on your behalf and that you are at least eighteen (18) years old. As used in these Terms of Use, the term “you” refers to you individually, and if applicable, your employer or such other entity on whose behalf you may access this website.

2. Revisions

These Terms of Use may be amended by Alamo Iron Works at any time. Such amended Terms of Use shall be effective upon posting on this website. You agree to review the Terms of Use published on this website regularly to ensure that you are aware of all terms governing your use of this website. Alamo Iron Works reserves the right, at its sole discretion, to modify, disable, restrict access, or discontinue, temporarily or permanently, any part of or all of this website or any information contained thereon without liability or notice to you.

3. Other Triple-S Websites

Other Triple-S Steel Holdings, Inc. company websites may have their own terms of use which apply to such websites.

4. Specific Terms

Separate terms and conditions may apply to specific content, products, materials, services, or information contained on or available through this website (the "Content") or transactions concluded through this website, including, but not limited to our standard terms and conditions of sale and terms and conditions of purchase. Such terms may be in addition to these Terms of Use or, where and then only to the extent the content or intent of such specific terms is inconsistent with the terms contained in these Terms of Use, such specific terms will supersede these Terms of Use.

5. Products

Alamo Iron Works endeavors to provide current and accurate information on the website. However, misprints, errors, inaccuracies, omissions (including incorrect specifications for products) or other errors may sometimes occur. You should independently evaluate the accuracy of the information and the usefulness for your particular needs of any product or service available through the website. Alamo Iron Works cannot guarantee that products and services advertised on the website will be available when ordered or thereafter. Specifications for products and services are subject to change without notice, and Alamo Iron Works reserves the right to make changes to processing, materials, or configuration without notice. Alamo Iron Works does not warrant that the content of the Website including, without limitation, product descriptions or photographs, is accurate or complete.
Alamo Iron Works reserves the right to reject any order you place with us, and/or or to limit quantities on any order, without giving any reason. If we reject your order, we will generally attempt to notify you using the e-mail address you provided when placing the order, although we make no guarantee to do so. If your credit card has been charged for the purchase and your order is cancelled by Alamo Iron Works, Alamo Iron Works shall issue a credit to your credit card.

6. Limitation of Damages

ALTHOUGH CARE HAS BEEN TAKEN TO ENSURE THE ACCURACY OF THE INFORMATION ON THIS WEBSITE, ALAMO IRON WORKS ASSUMES NO RESPONSIBILITY THEREFORE ALL CONTENT IS PROVIDED "AS IS" AND "AS AVAILABLE". ALAMO IRON WORKS HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR AS TO THE OPERATION OF THIS WEBSITE OR THE CONTENT. ALAMO IRON WORKS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS AS TO THE SECURITY OF THIS WEBSITE. YOUR USE OF THIS WEBSITE IS AT YOUR OWN RISK YOU ACKNOWLEDGE ANY INFORMATION SENT MAY BE INTERCEPTED. ALAMO IRON WORKS DOES NOT WARRANT THAT THE WEBSITE OR THE SERVERS WHICH MAKE THIS WEBSITE AVAILABLE OR ELECTRONIC COMMUNICATIONS SENT BY ALAMO IRON WORKS ARE FREE FROM VIRUSES OR ANY OTHER HARMFUL ELEMENTS.
IN NO EVENT SHALL ALAMO IRON WORKS, ITS PARENT COMPANY OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, CONTRACT, REVENUE, DATA, INFORMATION OR BUSINESS INTERRUPTION) RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE THIS WEBSITE OR THE CONTENT, EVEN IF ALAMO IRON WORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY ACTION BROUGHT AGAINST ALAMO IRON WORKS PERTAINING TO OR IN CONNECTION WITH THIS WEBSITE MUST BE COMMENCED AND NOTIFIED TO ALAMO IRON WORKS IN WRITING WITHIN ONE (1) YEAR AFTER THE DATE THE CAUSE FOR ACTION AROSE.

7. Indemnification

YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS ALAMO IRON WORKS, AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUBSIDIARIES, AND AFFILIATES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL LOSSES, COSTS, LIABILITIES, OBLIGATIONS, DAMAGES, DEFICIENCIES, EXPENSES, ACTIONS, SUITS, PROCEEDINGS, DEMANDS, ASSESSMENTS AND/OR JUDGMENTS, INCLUDING REASONABLE ATTORNEYS' FEES, THAT ARE CAUSED BY, OR RESULT OR ARISE FROM (I) YOUR USE OF THE SITE; (II) ANY BREACH BY YOU OF ANY OF THESE SITE TERMS; (III) COMMUNICATIONS BETWEEN YOU, OTHER USERS, AND/OR OTHER THIRD PARTIES; AND (IV) INTELLECTUAL PROPERTY INFRINGEMENT VIOLATIONS AND VIOLATION OF LAWS BY YOU.

8. Linking to this Website

This website may provide links to other websites that are not under the control of Alamo Iron Works. Alamo Iron Works shall not be responsible in any way for the content of such other websites. Alamo Iron Works provides such links only as a convenience to the user of this website, and the inclusion of any link to any such websites does not imply endorsement by Alamo Iron Works of the content of such websites or, unless expressly disclosed otherwise, any sponsorship, affiliation or association with its owner, operator or sponsor, nor does Alamo Iron Works’ inclusion of the links imply that Alamo Iron Works is authorized to use any trade name, trademark, logo, legal or official seal or copyrighted symbol that may be reflected in the linked website. You may not link to this website without the consent of Alamo Iron Works’ prior written permission. Anyone linking to this website must comply with all applicable laws and other requirements of Alamo Iron Works for linking to this website.

9. Trademarks and Service Marks

Unless otherwise explicitly stated, copyright and all other proprietary rights in the Content (including but not limited to software, audio, video, text, and photographs) rests with Triple-S Steel Holdings, Inc. or any of its affiliates or their licensees, irrespective of whether a copyright symbol or statement is present. There are a number of proprietary logos, service marks, trademarks, slogans and product designations found on this Site. By making them available on this Site, Triple-S Steel Holdings, Inc. or any of its affiliates are not granting you a license to use in any fashion. Access to this Site does not confer upon you a license under any of Triple-S Steel Holdings, Inc. or any of its affiliates or any third party's intellectual property rights. Except as otherwise provided, the Content published on this website may be reproduced or distributed in unmodified form for personal non-commercial use only. Any other use of the Content, including without limitation distribution, reproduction, modification, display or transmission without the prior written consent of Triple-S Steel Holdings, Inc. or any of its affiliates is strictly prohibited. All copyright and other proprietary notices shall be retained on all reproductions. Our policy is to comply with all intellectual property laws, and to act expeditiously upon receiving any notice of claimed infringement. If you believe that your work has been reproduced on this website in a manner that constitutes copyright infringement, please provide a notice of copyright infringement identifying the original copyrighted work and the portions of the Alamo Iron Works site that is claimed to be infringing such copyright. Any material or information sent through or in connection with this website by you ("User Materials") will be treated as non-confidential and non-proprietary, and immediately become the property of Alamo Iron Works or any of its affiliates, subject to any privacy policies posted on this website. Alamo Iron Works may use such User Materials as it deems fit, anywhere in the world, without obligation for compensation, and free of any moral rights, intellectual property rights and/or other proprietary rights in or to such User Materials.
The website may contain references to specific products and services that may not be (readily) available in a particular country. Any such reference does not imply or warrant that any such products or services shall be available at any time in any particular country. Please contact your local Alamo Iron Works business contact for further information.
Software made available for downloading from or through this website is licensed subject to the terms of the applicable license agreement. Except as set forth in the applicable license agreement, the software is made available for use by end users only and any further copying, reproduction or redistribution of the software is expressly prohibited. WARRANTIES, IF ANY, WITH RESPECT TO SUCH SOFTWARE SHALL ONLY APPLY AS EXPRESSLY SET FORTH IN THE APPLICABLE LICENSE AGREEMENT. ALAMO IRON WORKS HEREBY EXPRESSLY DISCLAIMS ALL FURTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE.

10. User Conduct and Information

The user agrees a) not to use this website in any manner which could damage, disable, overburden or impair this website; b) not to interfere with the security of, or otherwise abuse, this website, or any services, system resources, accounts, servers or networks connected to or accessible through this Site or affiliated or linked sites; c) not to disrupt or interfere with any other person's use and enjoyment of this Site or affiliated or linked sites; d) not to upload, post or otherwise transmit on this website any viruses or other harmful, disruptive or destructive files or computer programs; e) not to use any robot, spider or other automatic device, or manual process to monitor or copy the web pages or the content contained at this Site without written permission; f) not to use or attempt to use another's account, service or system without authorization from Alamo Iron Works, or create or use a false identity on this website; g) not to transmit on this Site spam, chain letters, junk mail or any other type of unsolicited mass e-mail; and h) not to attempt to obtain unauthorized access to this Site or portions of this Site which are restricted from general access. In addition, you agree that you are solely responsible for actions and communications undertaken or transmitted to or for your account, and that you will comply with all applicable laws that relate to your use or activities on this website. Alamo Iron Works may handle user information that you submit within the website. While Alamo Iron Works will make commercially reasonable efforts to protect your information, Alamo Iron Works cannot and does not guarantee that any information you provide through this website will not be intercepted by others and/or used for unauthorized purposes.

11. Jurisdiction and Choice of Law

These Terms of Use shall be governed by and construed in accordance with the laws of the State of Texas, and the federal laws of the United States of America, without giving effect to conflict of laws provisions. You agree to submit to the personal and exclusive jurisdiction of the state or federal courts located within the State of Texas for any disputes arising from or related to the Site or these Terms of Use.

General Terms and Conditions for Supply of Goods

1.    DEFINTIONS

As used in these General Terms and Conditions for Supply of Goods, the following words and phrases shall have the meanings stated below. 
“Agreement” means these General Terms and Conditions for Supply of Goods entered into between the Parties.
“Affiliate” of any specified person or entity means any other person or entity directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person or entity. For the purposes of this definition, control when used with respect to any specified entity means the power to direct the management and policies of such entity directly or indirectly, through the ownership of voting securities or the right to elect the majority of the members of the board of directors of such entity; and the terms controlling and controlled have meanings correlative to the foregoing.
“Buyer” means the buyer of the Goods referenced in the Invoice.
“Credit Agreement” means any credit agreement that Seller and Buyer may have previously entered into.
“Confidential Information” means any pricing, terms, information, data, trade secrets, know-how, drawings, manuals, specifications, standards, designs, plans, maps, manufacturing and production procedures and techniques, models, sketches, samples, formulations, project specific calculations, instruments, software and computer records, and other business and technical documentation, information and materials belonging to Seller, regardless of whether it is marked as confidential or not or the form in which it is communicated or maintained (whether in writing, electronically, digitally or otherwise).
“Delivery Date” means the date that the Goods are delivered to Buyer.
“Goods” means the goods that Seller has agreed to supply to Buyer.
“Invoice” means the invoice issued by Seller in connection with the sale of the Goods.
“NORM” means naturally occurring radioactive material.
“Parties” means Buyer and Seller, collectively.
“Seller” means Triple-S Steel Holdings, Inc., a Texas corporation, or the applicable Affiliate of Triple-S Steel Holdings, Inc. referenced in the Invoice.
“Specifications” means the description and specifications of the Goods set forth in the Invoice.

2.    ENTIRE AGREEMENT

(a)    The Agreement, the Invoice and any Credit Agreement represent the entire agreement of the Parties in relation to the sale of the Goods and supersedes any and all prior agreements with respect to the subject matter of the Agreement.  Seller’s acceptance of Buyer’s order, the Invoice, including shipments to Buyer in response to any telephone orders, or Buyer’s acceptance of Seller’s offer or quotation containing these General Terms and Conditions for Supply of Goods shall constitute acceptance by Buyer of the Agreement.
(b)    No representations other than those set forth in the Agreement shall be deemed made. Any conflicting terms contained in any written document (including any correspondence between Buyer and Seller), unless incorporated herein by a typed or handwritten addition hereto expressly accepted by Seller or a document signed by Seller making reference to this clause, shall be of no force or effect and these General Terms and Conditions for Supply of Goods shall apply.

3.    DELIVERY OF GOODS

Seller shall deliver the Goods to Buyer per the terms of, and within the delivery schedule set forth in, the Invoice. If Seller for any reason anticipates difficulty in complying with the delivery schedule, Seller shall notify Buyer in writing.

4.    PAYMENT

(a)    Buyer agrees to pay the full Sales Price as specified in the Invoice. The Sales Price is subject to and contingent upon Buyer purchasing the entire quantity of Goods identified in Buyer’s order. If Buyer purchases less than the entire quantity of Goods identified in Buyer’s order, Seller reserves the right to increase the Sales Price.  The Sales Price is valid only if the Goods are shipped within fifteen (15) days of sales acknowledgement. Unless Buyer has been notified by Seller otherwise in writing, after this fifteen (15) day period, Seller reserves the right to raise the Sales Price in accordance with any published mill increases.
(b)     The Sales Price may not include, and Buyer is responsible for paying, all sales, use, excise or other taxes upon the sale or use of the Goods covered by the Invoice.  The Invoice may not be altered, amended, supplemented, or cancelled without Seller’s express written consent.  Any amounts owed hereunder by Buyer shall be paid by check or wire transfer, in immediately available funds, to the bank account designated by Seller in the Invoice. The Sales Price provided to Buyer shall be kept confidential except to the extent Buyer is required by law to disclose the same.
(c)    Interest shall accrue on the unpaid portion of the Invoice at a rate of one and one-half percent (1.5%) per month (18% per annum), or, if lower, the highest rate permitted by law on past due accounts.  
(d)    In the event of non­payment, Buyer agrees to pay to Seller: (1) all costs of collection and incidental damages incurred by Seller, including, but not limited to, reasonable attorneys’ fees and expenses; (2) any commercially reasonable charges, expenses or commissions incurred in stopping delivery; (3) additional transportation charges; and, (4) Seller’s net additional expense incurred for the care and custody of the Goods in connection with their return or resale.  In the event of any claim or legal action brought by Buyer for any cause whatsoever, Buyer shall have no rights of retention or set-off.  If Buyer defaults in any payment due hereunder or fails to comply with any of the terms hereof, Seller or any officer of the law may take immediate possession of the Goods without demand, and for this purpose, may enter the premises of Buyer where the Goods may be located and remove them.
(e)    Prices on Seller’s website, catalogs or in Seller’s quotes are subject to change without notice, and all such prices expire and become invalid if not accepted within ten (10) days from the date of issue, unless otherwise noted by Seller in writing. Price extensions, if made, are for Buyer's convenience only, and they, as well as any mathematical, stenographic or clerical errors, are not binding on Seller. 

5.    RETURNS

No Goods may be returned, and no order may be canceled, in whole or in part, without the prior written consent of Seller.  If Seller consents to a return, Seller may assess a restocking fee.

6.    PURCHASE MONEY SECURITY INTEREST

Buyer grants to Seller a security interest in the Goods, as well as a security interest in any goods made or fabricated therefrom and the proceeds thereof, and agrees that said security interest secures any and all obligations of Buyer at any time owing to the Seller, whether now existing or hereinafter incurred.  Buyer hereby authorizes Seller to file a copy of the Agreement and any Invoice as a financing statement at any time.

7.    TITLE AND RISK OF LOSS

Title, and risk of loss for destruction or damage, to the Goods will pass from Seller to Buyer upon delivery of the Goods to Buyer in accordance with Section 3.

8.    INSPECTION

(a)    Buyer shall (1) inspect Goods for transportation-related damage or shortage immediately upon delivery; (2) describe any such damage or shortage on the bill of lading; and (3) immediately report the damage or shortage to Seller.  Buyer may not reject or revoke the acceptance of any Goods or fail to make payment for any Goods without filing a claim with proof of such damage or non-conformance. The claim must include photographs and a copy of the original bill of lading signed by Buyer noting in detail the claimed damage or non-conformance.
(b)    Buyer shall provide written notice to Seller of any damaged or non-conforming Goods within five (5) days after the Delivery Date. Failure to give written notice within the aforesaid period shall release Seller from any liability thereof.
(c)    Buyer agrees to set aside, protect, and hold such damaged or non­conforming Goods, at Buyer’s sole cost, until Seller can make arrangements for the return of Goods to Seller’s facilities. In no event shall damaged or non-conforming Goods be returned, reworked, or scrapped by Buyer without Seller’s prior written authorization.
(d)    Upon notification that Buyer wishes to make a return for damaged or non-conforming Goods, Buyer shall submit its proofs of claim to Seller, as well as any additional information that Seller may reasonably require to establish the validity of the claim. Seller reserves the right to require the submission of a sample of the damaged or non-conforming Goods.

9.    TAXES

Any taxes, including, but not limited to sales, use, excise, Goods and Services Tax (GST) and Value Added Tax (VAT), that Seller is required to collect or pay with respect to the sale, shipment or delivery of the  Goods pursuant to the Agreement are the responsibility of Buyer, and Buyer agrees to either provide Seller with written proof of exemption from such taxes, pay such taxes directly or reimburse Seller should Seller be required by law to collect and remit such charges.

10.    LIMITATION OF LIABILITY

(a)    Buyer acknowledges that Seller is only a reseller of the Goods and is not the manufacturer of the Goods and, therefore, Seller will not be liable for any defects in the Goods or any damages caused by any defects in the Goods.  Buyer agrees that any claims that Buyer may have for any defects in the Goods shall be solely against the manufacturer of the Goods.  Seller shall reasonably cooperate with Buyer in making any such claims against the manufacturer of the Goods so long as the same is at no cost or liability to Seller.
(b)    SELLER’S LIABILITY, IN EXCESS OF THE COST TO REPLACE OR REPAIR NON-CONFORMING GOODS, FOR DAMAGES, COSTS, EXPENSES AND LOSSES HOWEVER ARISING FROM OR RELATED TO THE FULFILLMENT OR THE NON­FULFILLMENT OF THE AGREEMENT, WHETHER BASED IN LAW, STATUTE, COMMON LAW, CONTRACT, TORT, WARRANTY, STRICT LIABILITY, PRODUCTS LIABILITY, EQUITY OR OTHERWISE, SHALL BE LIMITED TO THE COMPENSATION OF DIRECT DAMAGES, COSTS, EXPENSES AND LOSSES AND SUCH COMPENSATION SHALL BE LIMITED TO THE AMOUNT THAT BUYER PAID SELLER FOR THE GOODS.
(c)    NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES FOR LOSS OF PROFITS, INCOME, REVENUE OR PRODUCTION, NOR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODS OR OTHER PRODUCTS, FINANCIAL LOSS, COST OF CAPITAL, COST INCURRED IN CONNECTION WITH LABOR, OVERHEAD, GENERAL ADMINISTRATION, TRANSPORTATION, SUBSTITUTE FACILITIES, SUPPLY SOURCES) OR OTHER SIMILAR DAMAGES, WARRANTY, STRICT LIABILITY, PRODUCTS LIABILITY, WHETHER ANY SUCH LIABILITY WOULD BE BASED IN LAW, STATUTE, COMMON LAW, CONTRACT, TORT, EQUITY OR OTHERWISE.
(d)    IN NO EVENT SHALL SELLER BE LIABLE FOR (1) POLLUTION, CONTAMINATION OR RADIATION DAMAGE (INCLUDING THE COST OF CONTAINMENT, CLEANUP AND DISPOSAL), AND (2) SUBSURFACE LOSS OR DAMAGE, INCLUDING LOSS OF OR DAMAGE TO ANY RESERVOIR, FORMATION, STRATA, WELL, OR BOREHOLE OR IN-HOLE EQUIPMENT, OR IMPAIRMENT OF ANY PROPERTY RIGHT TO WATER, OIL, GAS OR OTHER MINERAL SUBSTANCES, AND (3) DAMAGE, LOSS OR DESTRUCTION, OR PERSONAL INJURY OR DEATH ARISING ON THE SURFACE AS A RESULT OF SUBSURFACE OCCURRENCE (INCLUDING DAMAGE TO OR LOSS OR DESTRUCTION OF ANY EQUIPMENT, DRILLING RIG, PLATFORM OR OTHER FIXED OR FLOATING STRUCTURE AT OR AROUND THE WELL SITE), AND (4) KILLING OR REGAINING CONTROL OF A WILD WELL, OR REDRILLING, REWORKING OR FISHING (INCLUDING THE COST THEREOF).  
(e)    This limitation of liability is a material basis for the Parties’ bargain and reflects the bargained-for allocation of risks between Seller and Buyer, without which Seller would not have agreed to provide the Goods at the Sales Price charged.

11.    INDEMNITY

Buyer shall indemnify, defend, release and hold harmless Seller and its Affiliates, and their respective directors, officers, employees and agents from and against all demands, claims, suits, damages, losses, judgments and liabilities of whatever kind or nature, including, without limitation, reasonable attorneys’ fees, expenses and other costs of litigation, fines, penalties or assessments asserted against or suffered by the indemnitees by reason of, arising out of, or in any way related to, Buyer’s use (or any subsequent end-user’s use) of the Goods or Buyer’s negligence or willful misconduct. Without limitation, Buyer’s obligation to indemnify, defend, release and hold the indemnitees harmless shall exist with respect to accidents, occurrences, disease, injuries to persons (including death), environmental or other property damage, property or economic losses, and violation of applicable law or regulation.

12.    WARRANTY

Seller warrants that, for a period of thirty (30) days after the Delivery Date (the “Warranty Period”), the Goods will meet the Specifications (the “Warranty”).  The Warranty does not extend to any surplus or secondary material.  If, within the Warranty Period, Buyer discovers any breach of the Warranty, Buyer shall give Seller written notice within the Warranty Period and an opportunity to inspect any Goods furnished hereunder which Buyer claims do not confirm to Warranty and, if Seller determines that there has been a breach of the Warranty, Seller will, at Seller’s option, promptly repair or replace without cost the Goods in question or refund the purchase price paid for such Goods.  Seller’s liability under the Warranty shall be limited to repair or replacement of the non-confirming Goods or refund of the purchase price paid for such Goods.  In no event shall Seller be responsible for retrieving non­conforming Goods or be liable to Buyer for any delay or curtailment of operations, pollution or cost of dismantling and removal of Goods to be repaired or replaced, resulting from non-conforming Goods.  EXCEPT FOR THE WARRANTY, SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, RESULT, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. THE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, TERMS, REPRESENTATIONS, GUARANTEES OR LIABILITIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY, AND SUCH OTHER WARRANTIES, TERMS, REPRESENTATIONS, GUARANTEES OR LIABILITIES, BASED IN LAW, STATUTE, COMMON LAW, CONTRACT, TORT, EQUITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE) ARE DISCLAIMED.  SELLER’S WARRANTY OBLIGATIONS HEREUNDER, AND BUYER’S REMEDIES ARE SOLELY AND EXCLUSIVELY AS STATED IN THIS SECTION.  NO EMPLOYEE OR REPRESENTATIVE OF SELLER IS AUTHORIZED TO CHANGE THE WARRANTY IN ANY WAY OR GRANT ANY OTHER WARRANTY.  Seller shall not have any warranty obligations with respect to any Good, or part thereof, which: (i) is normally consumed in operation, (ii) has a normal life inherently shorter than the Warranty Period, (iii) is not properly stored, installed, maintained or repaired, or is modified other than pursuant to Seller’s instructions or approval, or (iv) has been subjected to any other kind of detrimental exposure, or has been involved in an accident.

13.    PREVENTION AND CONTROL OF RADIOACTIVE CONTAMINATION: NORM

Seller places prime importance on detecting products potentially contaminated with NORM. Buyer shall take all reasonable measures to detect and prevent from delivering to Seller any products, equipment, ancillaries, materials, personnel’s clothing (including, without limitation, the return or delivery to Seller of Goods provided by Seller to Buyer under the Agreement) potentially contaminated with NORM. Upon delivery of such products or Goods, Buyer shall provide a certificate attesting that all such products or Goods have been scanned with a detector with adequate scale to measure the values set forth herein and found to contain not more than 50 micro Rontgen (µR) per hour or 0.5 micro Sievert (µSv), including background radiation, or less of gamma radiation activity. In addition, such certificate shall include, without limitation, the following detailed information: (i) description of the analyzed material (including quantity of material); (ii) description of the performed scans; (iii) maximum values of gamma radiation activity detected, (iv) name of the company that performed the scan and name and signature of the person responsible for such scan that shall be duly qualified according to applicable local regulations; and (v) identification of the equipment used to perform the scan and the date of its latest calibration. Failure to request any such certificate shall not relieve Buyer from the strict compliance of the obligations set forth herein. Upon receipt of the certificate and before accepting the products or Goods, Seller’s representative may take all the necessary counter measures to comply with local regulations and its internal policies. If Buyer fails to provide the certificate or such certificate does not include the above mentioned information or does not certify that all products or Goods have been scanned with an adequate radioactivity detector and found to contain 50 micro Rontgen (µR ) or less per hour or 0.5 micro Sievert or less per hour (µSv ) including background radiation or less of gamma radiation activity, such products or Goods shall be considered by Seller as potentially contaminated with NORM and Seller shall, in addition to any other rights or remedies under law, be entitled to refuse delivery of products or Goods or to return to Buyer the same. All costs and expenses incurred by Seller in respect of the returned or rejected products or Goods shall be charged to Buyer. Notwithstanding the foregoing, Buyer agrees to protect, defend, indemnify and hold Seller, its Affiliates and subcontractors harmless from and against all liabilities, claims, demands, actions, damages, losses and expenses, including court costs and reasonable attorneys’ fees, of every type and character, without limit and without regard to the cause or causes thereof, which (i) arise out of or are related in any way to the subject matter of this Section and which are asserted against, or incurred by, Seller, its Affiliates or their subcontractors (including without limitation due to personal injury or death) and/or (i) Seller, its Affiliates or their subcontractors may incur as a consequence of or in connection with the breach of any of the above mentioned obligations, WHETHER OR NOT CAUSED BY THE JOINT AND/OR CONCURRENT NEGLIGENCE OF THE SELLER, ITS AFILIATES AND SUBCONTRACTORS. If local regulations set stricter requirements than those established herein, local regulations shall be followed by Buyer.

14.    MSDS CAUTION.  WHEN CERTAIN MATERIALS ARE SUBJECTED TO WELDING, CUTTING, GRINDING OR OTHER FABRICATION OPERATIONS, HAZARDOUS SUBSTANCES AND/OR FUMES MAY BE RELEASED, CONTACT SELLER FOR MATERIAL SAFETY DATA SHEETS ON THE GOODS.

15.    EXPORT CONTROL

Any sale hereunder shall at all times be in strict conformity with all relevant export control laws and regulations.  Buyer shall at all times in connection with the performance of the Agreement be in compliance with all economic sanctions and export control regimes applicable to any party to the Agreement, including but not limited to the United Nations, United States, and European Union regimes. Buyer shall not make any disposition by way of trans-shipment, re-export, diversion or otherwise, of the Goods, except as said laws and regulations may expressly permit, and no such disposition or transfer will be made other than to the ultimate country of destination specified in the Invoice or as declared as the country of ultimate destination on the Invoice. Any act or omission or failure of Buyer to act in compliance with the foregoing that results in Seller, including its Affiliates, or any of the parties involved in the transaction (“Indemnified Parties”) being subject to any governmental or authority investigation or violation of applicable laws, including, without limitation, the imposition of fines and penalties, Buyer shall reimburse all Indemnified Parties for and release, defend, indemnify and hold harmless the Indemnified Parties (including banks involved) against any claim, demand, liability, loss or damage imposed by the applicable governmental authority arising out from such an action, omission or failure to act or as a result of Buyer’s breach of its obligations under this Section.  Neither Seller nor any of the Indemnified Parties assume any liability to Buyer or to any other person for Buyer’s acts of non-compliance with export control laws, sanctions, restrictive measures and embargoes.

16.    FORCE MAJEURE

Seller is not liable for a failure to perform any of its obligations in so far as Seller proves (i) that the failure was due to an impediment beyond its control; (ii) that it could not reasonably be expected to have taken the impediment and its effects upon its ability to perform into account at the time of the execution of the Agreement, and (iii) that it could not reasonably have avoided or overcome it or at least its effects; including, but not limited to, pandemics, epidemics, war, whether declared or not, civil war, riots and revolutions, acts of piracy, acts of sabotage, natural disasters such as violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lightning, explosions, fires, breakdown or destruction of machines, of factories, and of any kind of installations boycotts, strikes and lock-outs of all kinds, work slowdowns, occupation of factories and premises, and work stoppages which occur in Seller’s enterprise, lack of or inability to obtain raw materials, fuels or supplies, acts of Buyer or civil or military authority, whether lawful or unlawful, apart from acts for which Seller has assumed the risk by virtue of other provisions of the Agreement. A ground of relief under this clause relieves Seller from damages, penalties and other contractual sanctions to the extent that the ground persists. Further it postpones the time for performance, for such period as may be reasonable, thereby excluding Buyer’s right, if any, to terminate or rescind the Agreement. If the grounds of relief persist for more than sixty (60) days, either Party shall be entitled to terminate the Agreement with prior written notice. Each Party may retain what it has received from the performance of the Agreement carried out prior to the termination. Each Party must account to the other for any unjust enrichment resulting from such performance. The payment of the final balance shall be made without delay.

17.    CONFIDENTIALITY

(a)    Buyer acknowledges that in connection with the sale of the Goods, Buyer has received or will receive from Seller certain proprietary and Confidential Information, which is of substantial proprietary value to Seller, including, but not limited to, the price being charged to Buyer for the Goods.
(b)    Buyer agrees to hold in strict confidence, and not to disclose to third parties or use for any purpose other than the purpose of the Agreement, any Confidential Information.
(c)    Buyer shall be liable for any loss or damage to any Confidential Information, and shall not be released from its obligations of confidentiality, non-use and non-disclosure until and unless: (i) Confidential Information becomes non-confidential information without any breach of this Agreement or (ii) Seller releases Buyer from its confidentiality obligations hereunder by written notice.
(d)    All technical documents developed by Seller and to be provided to Buyer as part of the obligations assumed hereunder, including any copyright therein, shall be the sole property of Seller and shall always he treated as confidential.

18.    ASSIGNMENT

Buyer shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Seller. Any purported assignment or delegation is null and void. No assignment or delegation shall relieve Buyer of any of its obligations under the Agreement.

19.    GOVERNING LAW

THE AGREEMENT SHALL BE GOVERNED BY, AND CONFIRMED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD FOR ITS CONFLICTS OF LAWS PROVISIONS.

20.    DISPUTES

THE PARTIES AGREE THAT IN THE EVENT OF A DISPUTE OR ANY ALLEGATION OF BREACH CONCERNING THE PARTIES’ PERFORMANCE UNDER THE TERMS OF THE AGREEMENT, THAT THE PARTIES SHALL, FOR A PERIOD NOT TO EXCEED THIRTY (30) DAYS FOLLOWING NOTICE BY ONE PARTY TO THE OTHER PARTY THAT A DISPUTE EXISTS, ENDEAVOR TO RESOLVE SUCH DISPUTE THROUGH GOOD FAITH NEGOTIATIONS. IN THE EVENT THAT THE PARTIES FAIL TO RESOLVE THEIR DISPUTE IN THE FOREGOING MANNER, THE ALLEGED BREACH OR DISPUTE SHALL BE SUBMITTED TO NON-BINDING MEDIATION AS A CONDITION PRECEDENT TO THE INSTITUTION OF LEGAL PROCEEDINGS BY EITHER PARTY.  THE PARTIES SHALL THE MEDIATOR’S FEE AND ANY FILING FEES EQUALLY.  THE MEDIATION SHALL BE HELD IN HARRIS COUNTY, TEXAS, UNLESS ANOTHER LOCATION IS MUTUALLY AGREED UPON BY THE PARTIES.  ANY SETTLEMENT AGREEMENTS REACHED THROUGH MEDIATION SHALL BE ENFORCEABLE AS SETTLEMENT AGREEMENTS IN ANY COURT HAVING JURISDICTION THEREOF.  IF THE BREACH OR DISPUTE IS NOT RESOLVED BY MEDIATION, THE PARTIES WILL SUBMIT THE BREACH OR DISPUTE TO THE DISTRICT COURTS IN HARRIS COUNTY, TEXAS OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS (HOUSTON DIVISION). 

21.    DEFAULT

(a)    If Buyer defaults in any of its obligations under the Agreement, Seller shall be entitled to (i) terminate totally or partially its obligations under the Agreement and any other agreements with Buyer or (ii) suspend totally or partially deliveries of Goods under the Agreement and any other agreements with Buyer. For such purposes, Seller will give Buyer written notice of termination or suspension, which shall become effective if Buyer does not remedy its default within thirty (30) days from receipt of Seller’s notice.
(b)    If Seller fails to commence actions to remedy any default of its obligations under the Agreement within thirty (30) days from written notice given by Buyer, then Buyer may terminate the Agreement without penalty or liability except for amounts payable in respect of Goods previously supplied to Buyer.
(c)    In the event that Buyer becomes voluntarily or involuntarily the subject of proceedings under any bankruptcy or insolvency law, or other legal procedure for the relief of financially distressed debtors, or is unable, or, admits in writing its inability, to pay its debts as they mature, or takes or suffers any action for its liquidation or dissolution, or has a receiver or liquidator appointed for all or any part of its assets and, in the event any act of the aforesaid character is involuntary, then Seller will be entitled to immediately terminate the Agreement by giving it written notice of termination.

22.    SEVERABILITY

The invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of any other provision of the Agreement. If any part of the Agreement cannot be legally enforced, the Parties agree that the provision will be deemed modified as necessary to make it enforceable while remaining as consistent as possible with the intent as expressed in the Agreement.

23.    PRODUCT SPECIFIC CLAUSES

(a)    ELECTRONIC AND PHOTOGRAPHIC CLEANING FLUIDS CUSTOMERS — It is a violation of federal law to sell, distribute, or offer to sell or distribute any chlorofluorocarbon (CFC) containing cleaning fluid for electronic and photographic equipment or aerosol hydrochlorofluorocarbon (HCFC) containing cleaning fluid for electronic and photographic equipment to anyone who is not a commercial user of this product. The penalty for violating this prohibition can be up to $25,000 per unit sold. Customers purchasing such products must present proof of their commercial status in accordance with 40 CFR 82.68(a) or (c). A "Commercial User," as defined in the regulation, means a person that uses the product in the purchaser's business, or sells it to another person and has one of the following identification numbers: (i) a Federal employer identification number; (ii) a State sales tax exemption number; (iii) a Local business license number; or (iv) a Government contract number.
(b)    MOLD RELEASE AGENT CUSTOMERS – It is a violation of federal law to sell mold release agents containing hydrochlorofluorocarbon (HCFC) as propellants to anyone, except for use in applications where no other alternative except a class I substance is available. The penalty for violating this prohibition can be up to $25,000 per unit sold.
(c)    WASP AND HORNET SPRAY CUSTOMERS – It is a violation of federal law to sell or distribute wasp and hornet sprays containing hydrochlorofluorocarbon (HCFC) as solvents to anyone, except for use near high-tension power lines where no other alternative except a class I substance is available. The penalty for violating this prohibition can be up to $25,000 per unit sold.
(d)     REFRIGERANT CUSTOMERS — Effective November 14, 1994, in accordance with the Federal Clean Air Act, sale of class I (CFC) and class II (HCFC) refrigerant will be restricted to resale purchases and/or to certified professional service technicians. To purchase regulated refrigerant products, Customer must present a certification card or sign a statement of resale to complete the purchase.
(e)     OSHA HAZARDOUS SUBSTANCE & CALIFORNIA PROPOSITION 65 PRODUCT INFORMATION — MSDS for OSHA-defined hazardous substances are available at your local Seller branch, or by contacting Seller's U.S. corporate headquarters. Seller makes no warranty with respect to the accuracy of the information or the suitability of the recommendations in the MSDS, all of which are provided by the manufacturers at issue, and, to the maximum extent permitted by applicable law, Seller disclaims any and all liability to Customer or any user or consumer with respect thereto. Proposition 65 is a California law requiring the state to maintain a list of chemicals that may cause cancer, birth defects, or reproductive harm. There are over 850 listed chemicals and Seller will attempt to provide a reasonable warning before potentially exposing Californians to such chemicals, but Customer acknowledges and agrees that Seller is a distributor and not a manufacturer of such goods and that Seller thus makes no warranty with respect to the accuracy, reasonableness, or suitability of the information or warnings provided in connection therewith, it being understood and agreed that such information and warnings are provided by the manufacturers at issue. Thus, to the maximum extent permitted by applicable law: (i) Seller disclaims any and all liability with respect thereto; and (ii) Customer hereby releases Seller and its parents and affiliates from and for any and all claims, fines, penalties, and damages arising from or in connection therewith, it being agreed that Customer’s sole recourse under Proposition 65 shall be against the manufacturer at issue. To learn more about Proposition 65, please visit www.oehha.ca.gov.
(f)     MATERIALS OF TRADE — Customer represents that if it is purchasing goods as its "materials of trade" as defined in the Hazardous Materials Regulations in Title 49 of the Code of Federal Regulations, that the goods will be used in direct support of its business, which is not transportation, and that such goods shall not be resold or transported in a vehicle other than one owned by itself.
 

General Terms and Conditions of Purchase

1.    Either of the following constitutes your (“Seller’s”) acceptance of these Terms and Conditions of Purchase (“T&Cs”): (a) Seller’s execution or acknowledgement of a purchase or work order ("Order"); or (b) Seller’s commencement of performance of the Order (e.g., promising or commencing performance); provided, however, we (“Buyer”) may treat the offer made by the Order as having lapsed before acceptance if Seller fails to so accept within a reasonable period of time. Except as provided in Section 3 (only as to an extended warranty period) and Section 10 below, Orders are subject to and governed exclusively by, and Seller's acceptance thereof is expressly limited to, these T&Cs. Buyer hereby expressly rejects and objects to any prior or subsequently proposed term, condition or alteration. No modification or waiver of these T&Cs shall be binding on Buyer unless expressly accepted in writing by Buyer’s authorized officer. Any reference to Seller’s quote, bid or proposal does not constitute acceptance of any legal terms or condition thereof. These terms and conditions shall apply to and govern Buyer and the following entities, which are Buyer’s subsidiaries: Alamo Iron Works, Intsel Steel, R&S Steel Supply, Nexcoil Steel, General Steel, Maas-Hansen Steel, Metals, Inc., Arbor Metals, Shamrock Steel, Triple-S Steel and Triple-S Tube Supply.

2.    Orders may be issued electronically or in writing. The purchase price for goods (“Products”) and services sold to Buyer shall be as listed on the Order or as otherwise agreed in writing by the parties. Buyer will pay undisputed portions of valid invoices within sixty (60) days of Buyer’s receipt. Buyer may cancel or change Orders without penalty upon at least ten (10) days’ notice. If Seller believes any such change will affect the price or delivery date, Seller shall so notify Buyer in writing (with reasonable supporting documentation) within three (3) days of receiving said written direction or the change shall be deemed accepted without modification to the price or date of delivery. Any such modification to price and/or delivery date must be pre-approved by Buyer in writing. No substitutions shall be made without Buyer’s prior written consent. Products shall be tendered by Seller in a single delivery unless otherwise agreed. Shipments shall be F.O.B. (INCOTERMS 2010) Buyer’s designated destination or otherwise in accordance with shipping terms on the Order. No charge will be allowed for packing, shipping or handling unless stated in the Order. Seller shall pay for damaged Products resulting from improper packing or marking. Itemized packing lists must accompany each shipment. Buyer’s count will be final and conclusive on shipments not accompanied by Seller’s itemized packing list. Time is of the essence. Seller shall promptly notify Buyer of any actual or anticipated delay and shall take all commercially reasonable steps to avoid or end delays without additional cost to Buyer.

3.    Seller represents, warrants, and covenants that: (i) it has and will transfer good title to Products upon delivery, free and clear of all liens, claims and encumbrances of any kind; (ii) Products will conform to Seller's standard technical specifications and to all specifications, descriptions, drawings and standards provided by Buyer or otherwise agreed to by Seller, and they will be new, meet the highest industry standards, fit for the purpose(s) normally intended (or specifically intended if such intent is communicated to Seller in the Order or otherwise), and Products and services will be free from defects in design, materials and workmanship; (iii) Products and their use, sale, lease and distribution will not infringe, misappropriate, or violate trademarks, service marks, copyrights, patents, patent rights, trade secrets or other intellectual property rights of a third party; (iv) it will utilize all necessary or desirable protective equipment and devices, whether suggested or required by safety associations, government agencies, municipalities or otherwise; (v) that all services shall be done with the utmost skill, care and diligence, in a good and workmanlike manner, in accordance with the terms hereof and good industry standards of performance and in a timely manner; (vi) it and the Products and services provided to Buyer will comply with all applicable laws, codes, standards and regulations (including, but not limited to anti-corruption and anti-bribery, child labor, affirmative action and conflict minerals); and (vii) it will comply with all aspects of Buyer’s Cyber Security Requirements outlined in Appendix 1 as applicable. The foregoing warranties are enforceable by Buyer and its direct and indirect customers receiving such Products (together, “Customers”), and each shall remain valid for the longer of: (1) eighteen (18) months from the date of shipment from Seller; (2) such longer period as is offered by Seller in its then standard warranty; or (3) such longer period as is required by applicable law. If Seller breaches any of the foregoing warranties, Seller shall, at Buyer’s election and at Seller’s sole cost and expense (including, but not limited to, all transport, packaging, removal, testing, re-install and other labor costs): (a) repair or replace Products or services to Buyer's complete satisfaction; (b) reimburse Buyer for the purchase price paid for such Products or services; or (c) reimburse Buyer for the cost of substitute products or services obtained by Buyer from third-parties. Warranties shall begin anew on the date of repair or replacement pursuant to this Section 3.

4.    Seller shall indemnify, defend and hold harmless Buyer, its parent, subsidiaries, Customers and affiliates, and its/their officers, directors, employees, agents, contractors and representatives, from and against any and all actual or asserted claims, actions, damages, injuries, fines, penalties, settlements, judgments, losses, costs and expenses (including court costs and attorneys' fees) (collectively "Losses") arising out of, in connection with, or resulting directly or indirectly from: (i) Seller's breach of any representation, warranty or covenant hereunder; (ii) the use, sale, lease or distribution of Products (including, without limitation, for Losses that are attributable, in whole or in part, to contamination, pollution or environmental damage (including clean-up costs), data or security breaches, or any inaccurate or misleading representations or omissions from any Product literature, communication, packaging, warning or instruction relating thereto); (iii) recall of Product initiated or required by Seller, a governmental agency or applicable laws, rules, orders or regulations; or (iv) negligence, gross negligence, recklessness, fraud, strict liability, fault, violation of law, or willful misconduct of Seller, its employees, suppliers, manufacturers, contractors, officers, directors, guests, invitees or agents. Seller acknowledges and agrees that its indemnity obligations under this Section 4 shall be enforceable against Seller regardless of whether or not insurance Seller maintains covers such indemnity obligations. The foregoing shall not be construed to negate, abridge, or otherwise reduce any other right or obligation that would otherwise exist as to any party or person described herein. In the event that any indemnity provisions herein are contrary to applicable law, then such indemnity obligations shall be construed to apply to the fullest extent allowed by applicable law.
5.    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, OR ITS PARENT OR AFFILIATES, OR ANY OF ITS/THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE HEREUNDER FOR ANY SPECIAL, RELIANCE, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMIT, FROM DAMAGES TO PROPERTY, FOR LOSS OF PROFITS, INCOME, USE OR TIME, WHETHER IN TORT, CONTRACT, OR OTHERWISE RESULTING FROM PERFORMANCE OR NON-PERFORMANCE HEREUNDER, AND WHETHER OR NOT IT/THEY KNEW OF THE POSSIBILITY THEREOF; PROVIDED, HOWEVER, THIS SECTION 5 SHALL NOT LIMIT SELLER'S OBLIGATIONS UNDER SECTIONS 4 OR 12.

6.    Unless otherwise expressly agreed in writing by Buyer, Seller shall not, and shall not authorize any other party to, use, modify, reproduce or replicate any trademark, logo or trade name owned or claimed by Buyer ("Buyer Marks") in any way. Seller shall not contest Buyer's right of exclusive use of any Buyer Mark. Upon expiration or termination of the Order, Seller will remove and not thereafter use any sign, catalogue, brochure or other material (whether print or electronic) containing any Buyer Mark and Seller will, at Buyer’s option, immediately destroy or return to Buyer such material in its possession or under its control containing Buyer Marks. In addition, Seller agrees not to use any Buyer Marks in any promotional material, including without limitation, customer lists, advertisements, or press releases, without Buyer's advance written authorization.

7.    The occurrence of any one or more of the following shall constitute an “Event of Default”: (i) delivery of services or Products failing to conform to any provision hereof (“Non-Conforming Products”); (ii) Seller’s breach or failure to perform its obligations hereunder; or (iii) Seller’s breach or misrepresentation of any representation or warranty herein. Upon an Event of Default, Buyer shall be entitled, but not required, to exercise any or all of the following: (i) for late delivery or performance, Buyer may extend the time therefore and/or require expedited shipping/services, and such Products/services shall be provided in the manner and per the timelines specified by Buyer, at Seller's sole cost; (ii) with respect to Non-Conforming Products, Buyer shall have all of the rights and remedies available under Sections 3 and 4 above; (iii) reject or revoke acceptance, as the case may be, of all or any portion of the shipment of Products containing any Non-Conforming Products; and/or (iv) exercise any other rights and remedies specified in the Order or otherwise available under applicable law. Buyer may exercise any one or more of the foregoing rights and remedies by notifying Seller of such intent. Buyer shall not be liable to Seller on account of exercising any such rights or remedies. Seller acknowledges and agrees that the occurrence of an Event of Default constitutes a substantial impairment of value to Buyer of the shipment at issue, the entire Order, and any other then pending Orders, so as to entitle Buyer to exercise any and/or all of the remedies specified herein, in the Order, and at law, and Seller hereby waives its right to cure the default in question, unless otherwise agreed in writing by Buyer. The making of or failure to make any inspection of or payment for the Products shall in no way impair Buyer’s right to reject Non-Conforming Products, nor be deemed acceptance by Buyer of the Products, nor affect in any way Seller’s obligations hereunder, notwithstanding Buyer’s opportunity to inspect the Products, Buyer’s knowledge of the non-conformity or defect, its substantiality or the ease of its discovery, nor Buyer’s earlier failure to reject the Products.

8.    All questions pertaining to the validity, construction, execution and performance of the Order and the relationship of the parties hereto shall be construed and governed by the laws of North Carolina and the USA, without giving effect to the principles of (i) comity of nations; or (ii) conflicts or choice of law provisions thereof, and the Order shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods. Exclusive jurisdiction shall be in the appropriate state or federal court in the state of Buyer's principal place of business.

9.    Seller certifies that it has an affirmative action policy ensuring equal employment opportunity without regard to, and that it maintains no employee facilities segregated on the basis of, race, color, national origin, sex, age, sexual orientation, religion or handicap, and that it is not debarred or suspended from being awarded Federal or Federally assisted contracts. If applicable, the following laws, orders and regulations, as amended, are hereby incorporated: Executive Order 11246; Vietnam Era Veterans Readjustment Act; Rehabilitation Act of 1973; Veterans Compensation, Education and Employment Act; 41 CFR 60-1.4 (Equal Employment Opportunity); 41 CFR 60-250.4 ⎯(Veterans Affirmative Action); 41 CFR 60-741.4 (Handicap Affirmative Action); 41 CFR 601.40 (Affirmative Action Plans); 41 CFR 601.7 (EE01 Reports); 41 CFR 61650 (Veterans Employment Reports). Seller certifies and warrants that it is and shall remain in compliance with all applicable anti-corruption and anti-bribery laws and that the Products are produced in compliance with the Fair Labor Standards Act of 1938, as amended, and the regulations and orders of the U.S. Department of Labor issued thereunder, and that each invoice it submits is correct and authentic and the only one issued for the Products at issue, and that all Products comply with the Occupational Safety and Health Act of 1970, as amended, and the applicable state plans approved under same, and the regulations thereunder, to the extent applicable. Seller shall notify Buyer in writing if Products are subject to laws or regulations relating to hazardous or toxic substances, or when disposed of, to regulations governing hazardous wastes, or to any other health, safety and/or environmental regulations. Seller shall furnish all appropriate shipping certifications, labeling in compliance with the Workplace Hazardous Materials Information System, Material Safety Data Sheets in compliance with the Workplace Hazardous Materials Information System, and instructions for shipping, safety, handling, exposure and disposal in a form sufficiently clear for use and actions to be taken by Buyer’s and its Customer’s non-technical personnel.

10.    Without limiting Seller’s obligations or liabilities hereunder, Seller shall, on the date an Order is accepted and for a period of two (2) years thereafter, at its sole expense, purchase and maintain the following insurance coverage with carriers that have A.M. Best ratings of not less than A- and with a minimum financial rating of Class VII: (a) Commercial General Liability Insurance that covers all liabilities for bodily injury and property damages arising from the Products, services and/or the performance of an Order, with limits of liability of at least $5,000,000 for each occurrence and in the aggregate. Coverage must include Products/Completed Operations, Personal and Advertising Injury and Blanket Contractual Liability (CG 20 10 or its equivalent must be provided). Such CGL insurance may be maintained through any applicable combination of CGL and Excess/Umbrella Coverage; (b) Automobile Liability Insurance that covers all liabilities for bodily injury and property damages arising from the use of all owned, hired or non-owned vehicles, with limits of liability of at least $1,000,000 for each occurrence and in the aggregate; (c) Workers Compensation Insurance shall be statutory by state law and Employer's Liability Insurance with limits of liability of at least $1,000,000; (d) Product Liability Insurance that covers the Products with limits of liability of at least $5,000,000 in the aggregate; and (e) Technology Errors & Omissions Liability Insurance, with a minimum limit of $5,000,000 per claim and in the aggregate, covering all Products including failure of information technology security, data privacy breach and software copyright infringement (if coverage is on a claims-made basis, the policy must contain a retro date which precedes the effective date of the Order and continuity must be maintained for 1 (one) year following termination or expiration of the Order). All insurance coverage required herein for Seller shall extend to and protect Buyer and its subsidiaries, parent company and/or affiliates to the full amount of such coverage, and all deductibles and/or self-insured retentions (if any), including those related to defense cost, are the sole responsibility of Seller and, upon Buyer’s request, Seller shall disclose the same to Buyer. All policies, except the Workers' Compensation insurance, shall be endorsed to name Buyer, its parent and affiliated entities, and its/their directors, officers, employees, representatives, and agents, as an additional insured and such policies shall be endorsed to waive all express or implied rights of subrogation against Buyer, its parent and affiliated entities. The insurance coverage set forth above shall be primary to any liability insurance or other insurance carried by Buyer, its affiliates or parent and Buyer's, its affiliate’s and parent’s other insurance shall be excess and non-contributory for claims and losses arising out of the performance of an Order. Seller shall provide a coverage endorsement for each category of insurance required above, except for Workers' Compensation, which includes a cross liability clause, stating that the Seller and Buyer shall each be considered as a separate entity. The policies shall not be canceled, terminated or materially reduced without thirty (30) days' advance written notice to Buyer. Seller shall provide Buyer with a Certificate of Insurance evidencing the above-required types and amounts of insurance coverage and other requirements prior to selling Products and providing services to Buyer and on an annual basis thereafter. Failure of the Seller to provide Buyer the Certificate of Insurance or failure of Buyer to specifically request such certificate, shall in no way limit or release the Seller of its obligations or liabilities under this Section 10. In the event the Seller or its insurance carrier defaults on any obligation hereunder, Seller agrees that it will be liable for all reasonable expenses and attorneys' fees incurred by Buyer or its affiliates to enforce the provisions hereunder.

11.    Unless Buyer and Seller are currently entered into a separate, written agreement that specifically governs their business relationship and the subject matter of the Order, and unless that written agreement specifically contains a merger clause that addresses conflicting terms and conditions in purchase orders, invoices, etc., then these T&Cs constitute the entire agreement and understanding between the parties, and supersede and replace all prior negotiations and agreements, proposed or otherwise, whether written or oral, concerning the subject matter hereof. No course of dealing, usage of trade or course of performance shall be relevant to explain, supplement or modify any express provision of these T&Cs.

12.    Buyer may disclose Confidential Information (as defined below) to Seller in connection with its purchase of Products and services from Seller. Seller shall not disclose any Confidential Information or any portion thereof to any person or entity and shall only use such Confidential Information to fulfill its obligations hereunder, it being understood that such Confidential Information provides Buyer with a competitive advantage in its trade because it is not generally known or available to the public. In that regard, Seller acknowledges and agrees that Buyer has taken and is taking reasonable steps to protect the confidentiality of, and its legitimate interests in, the Confidential Information. The term "Confidential Information" means information concerning Buyer’s business, personnel, data, financial and marketing plans, intellectual property rights (including, without limitation, patents, trademarks, copyrights and trade secrets), forecasts, strategies and statements, and Customer related information. To the extent allowed by law, Seller shall notify Buyer in writing in advance of any disclosure of Confidential Information required by law, court or administrative order.

13.    All notices permitted, required or provided for herein shall be made in writing, and shall be deemed adequately delivered if delivered by hand, certified mailing in the U.S. mail with return receipt requested, or by a recognized courier service that regularly maintains records of its pick-ups and deliveries, to the parties at their respective addresses, as set forth on the face of the Order or as otherwise designated by a party hereto. Any waiver of any of the provisions herein or of any inaccuracy in or non-fulfillment of any of the representations, warranties or obligations hereunder or contemplated hereby, shall not be effective unless made in writing and signed by the party against whom the enforcement of such waiver is sought. Any provision of these T&Cs that is deemed invalid or unenforceable in any jurisdiction shall, as to such jurisdiction only, be ineffective only to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable or otherwise affecting the remaining terms and provisions hereof. Neither party may assign or otherwise delegate any of its rights or obligations hereunder without the prior written consent of the other party, which consent will not be unreasonably withheld, delayed or conditioned; provided, however, Buyer shall have the right to assign Orders without Seller’s consent to an affiliate of Buyer. The provisions hereof that by their nature are intended to survive the termination, cancellation, completion or expiration of the Order shall continue as valid and enforceable obligations of the parties notwithstanding any such termination, cancellation, completion or expiration. To the maximum extent permitted by applicable law: (i) Seller's warranties are fully enforceable by Buyer and its Customers (as intended third-party beneficiaries); and (ii) the indemnities provided hereunder are fully enforceable by Buyer and/or any or all of the other indemnitees identified above in Section 4.

14.    Seller represents and warrants that it will at all times comply with all applicable laws and regulations, including trade, economic, and financial restrictions, trade embargoes, and any amendments thereto (for purposes of this Section 14, collectively, the “Laws”) imposed by any applicable governmental authority, including, where applicable, the United States and the European Union. Buyer shall not be liable, and Seller agrees to indemnify, defend, and hold harmless Buyer, for any breach of such Laws and for all claims, liabilities, costs (including attorneys’ and experts’ fees and court costs), damages, and penalties associated therewith or arising therefrom. Seller shall take all actions necessary to ensure that its suppliers, subcontractors, materialmen, and other business partners (i) comply with applicable Laws; and (ii) do not cause Buyer to violate applicable Laws. If applicable, Seller undertakes to timely provide all information and documentation necessary for export, shipment, and import. Buyer shall not be liable, and Seller shall indemnify, defend, and hold Buyer harmless, for delays and any other losses, including liquidated damages assessed against Buyer, arising or resulting from Seller’s failure to timely deliver Products and/or provide accurate information and documentation, export/import reviews, or any related permitting procedures. To the extent permitted by law, Seller shall, promptly upon becoming aware, provide to Buyer details of any claim, action, suit, proceedings or investigation against it with respect to Laws brought by any enforcement authority. In the event that Buyer should believe, acting in good faith, that Seller has violated, or is under investigation for violating, any Laws, or if Seller is identified on any applicable sanctions list, Buyer shall have the immediate right to terminate its relationship and/or any contract with Seller without liability.

 

Appendix 1: Cyber Security Requirements

1.    Seller shall ensure all Products have been developed in accordance with principles of secure software development consistent with software development industry best practices, including, but not limited to, security design review, secure coding practices, risk-based testing and remediation requirements. Seller must use reasonable measures to secure the software development environment of the Products from unauthorized access.

2.    Seller shall include cyber security guidance in the Product documentation provided to Buyer. This documentation shall include guidance on how to configure the Products and/or the surrounding environment to best ensure security. It shall also include guidance on which logical or physical ports are required for the Product to function. If authentication is used to protect access to any service or capability of the Products, regardless of the intended user of that service/capability, the Seller shall ensure:
(a)    the Products shall not provide access to that service or capability using a default account/password;
(b)    the Products shall not provide access to that service or capability using a “Backdoor” account or password;
(c)    the Products’ associated authentication and password change processes shall be implemented with an appropriately secure cryptographic level; and
(d)    Buyer shall be able to change any passwords supported by the Products.

3.    In the event that any wireless technology is incorporated in any Product, Seller shall document that the wireless technology complies with standard operational and security requirements specified in applicable wireless standard(s) or specification(s) (e.g., applicable IEEE standards, such as 802.11).

4.    In the event that any cryptographic systems are contained in the Product, Seller shall only use cryptographic methods that are “Approved” as defined in the Federal Information Processing Standard (FIPS) Security Requirements for Cryptographic Modules (FIPS 140-2), and Seller shall provide an automated remote key-establishment (update) method that protects the confidentiality and integrity of the cryptographic keys.

5.    Seller must develop and maintain an up-to-date Cyber Security Susceptibility management plan designed to promptly identify, prevent, investigate, and mitigate any Cyber Security Susceptibilities and perform any required recovery actions to remedy the impact. “Cyber Security Susceptibility (ies)” is defined as any bug, software defect, design flaw, or other issue with software associated with a Product that could adversely impact the confidentiality, integrity or availability of information or processes associated with the Product.

6.    Seller shall notify Buyer within a reasonable period, in no event to exceed five (5) business days after discovery, or shorter if required by applicable law or regulation, of any potential Cyber Security Susceptibility. Seller shall report any Cyber Security Susceptibility to Buyer. Within a reasonable time thereafter, Seller shall provide Buyer, free of charge, with any upgrades, updates, releases, maintenance releases and error or bug fixes necessary to remediate any Cyber Security Susceptibility. Seller shall reasonably cooperate with Buyer in its investigation of a Cyber Security Susceptibility, whether discovered by Seller, Buyer, or a third party, which shall include providing Buyer a detailed description of the Cyber Security Susceptibility, the remediation plan, and any other information Buyer reasonably may request concerning the Cyber Security Susceptibility, as soon as such information can be collected or otherwise becomes available. Buyer or Buyer’s agent shall have the right to conduct a cyber security assessment of the applicable Products, and the Product development lifecycle, which includes tests intended to identify potential Cyber Security Susceptibilities. Seller shall designate an individual responsible for management of the Cyber Security Susceptibility, and shall identify such individual to Buyer promptly.

7.    Seller represents, warrants and covenants that all open source software contained within the Products are and shall be in material compliance with the terms and conditions of the applicable licenses governing their use, and the Products or the use thereof by Buyer shall not cause Buyer or Buyer’s intellectual property rights to be subject to the terms or conditions of a copyleft license, or require Buyer to fulfill any open source license obligations for any open source software contained within the Products.

8.    Seller represents, warrants, and covenants that the Products shall be free of viruses, malware, and other harmful code (including, without limitation, time-out features) which may interfere with the use of the Products regardless of whether Seller or its personnel purposefully placed such code in the Products. In addition to exercising any of Buyer’s other rights and remedies under the Order or otherwise at law or in equity, Seller shall provide Buyer, free of charge, with any and all new versions, upgrades, updates, releases, maintenance releases, and error or bug fixes of the Products (collectively, “Revised Code”) which prevents a breach of any of the warranties provided under the Order or corrects a breach of such warranties. Revised Code contained in the Products constitutes Products for purposes of the Order.