(a) “AEC” means Albany Engineered Composites, Inc.
(b) “Buyer” means the contracting party with whom AEC has entered into Agreement with or received a Purchase Order from for the sale of Goods or services.
(c) “Purchase Order” or “Order” or “Agreement” means the document agreed upon by the parties and utilized by AEC to sell Goods or services to Buyer as therein described and these Standard Terms and Conditions of Sale as set forth herein constitute a part of such Order. Purchase Order, Order, and Agreement are herein used interchangeably.
(d) “Goods” means any good or services specified in the Purchase Order, or Order, or Agreement sold to Buyer by AEC.
1. GENERAL. This Agreement is entered into and all quotations are given subject to AEC’s Standard Terms and Conditions of Sale (herein contained) which may only be varied or waived by written agreement between AEC and the Buyer. No Agreement shall be made until AEC has accepted, in writing, an Order placed by the Buyer (“Sales Order Acknowledgment”). If these terms and conditions differ from the terms of any offer made or order placed by the Buyer, any subsequent communication by AEC constitutes a counter offer and not acceptance of such terms. Any quotation is given by AEC on the basis that no Agreement shall come into existence until AEC dispatches a Sales Order Acknowledgment to the Buyer. The quotation may therefore be varied or withdrawn without notice. Any provision or condition of Buyer’s order or other document which is in any way different from or in addition to these terms and conditions of sale are specifically rejected and shall not in any event be binding on AEC. Buyer’s acceptance of the provisions contained herein shall be conclusively presumed if no written objection hereto is received by AEC within ten (10) days from the date of AEC’s Sales Order Acknowledgement.
3. DESCRIPTIONS. All photographs, drawings, descriptions and details in AEC catalogues, price lists and other documents are only indicative of a type of product and do not constitute warranties, conditions or representations. No report, representation, advice, communication or statement made by a representative of AEC shall be binding on AEC unless expressly contained herein. AEC reserves the right to incorporate improvements in the general development of its products and make and charge for mandatory modifications to the Goods.
4.1 Unless otherwise agreed in writing, all prices quoted are Exworks AEC’s facility named on the Order (Incoterms 2010), and apply only in relation to the total quantities and dates and rates of delivery quoted. All prices are subject to the addition of all other duties and taxes (including, where applicable, sales or use tax or Value Added Tax at the rate ruling at the relevant tax point).
4.2 AEC reserves the right, by giving written notice to the Buyer at any time before delivery, to adjust the price of the Goods to take account of increases in the cost to AEC which are due to any factor beyond the control of AEC, including but not limited to costs of components or equipment not manufactured by AEC, raw materials, general commodities, freight, insurance, rates of currency exchange, duties, taxes or surcharges or improvements or mandatory modifications made under Clause 3, above.
5. PAYMENT. Unless otherwise agreed in writing, all payments shall be made in full, without deduction or withholding, in cash in United States dollars within thirty (30) days of date of invoice and free of setoff or counterclaim. Failure by the Buyer to make payment in accordance with the terms agreed shall, without prejudice to any other remedies AEC may have, render the Buyer liable to pay interest in an amount of one and one-half percent (1.5%) upon the total sums outstanding from the date of delivery (but not more than the maximum rate of interest allowed by applicable law), such interest accruing on a daily basis and being payable on demand. Time for payment is of the essence of the Agreement.
6.1 Unless otherwise agreed in writing, all deliveries shall be made ExWorks AEC’s facility named on the Order (Incoterms 2010), and shall be deemed to have been effected when AEC shall have notified the Buyer the Goods are ready for collection. Risk of loss and transfer of title shall occur at the time of delivery in accordance with this Clause 6.1.
6.2 Any periods quoted for delivery or dispatch are estimates only and time for delivery shall not be made of the essence by notice. If AEC fails to deliver the Goods (or any installment) for any reason other than any cause beyond AEC's reasonable control, or for any force majeure event as specified in Clause 14, or the Buyer's fault, then AEC shall be liable to the Buyer. AEC's liability under this Clause 6.2 shall be limited to the price of those Goods not delivered (notwithstanding Clause 12.2(i)) and the Buyer shall not be entitled to reject any consignment of the Goods or to treat the Agreement as repudiated in the event of any such failure.
6.3 AEC shall be entitled to make partial deliveries or deliveries by installments and these terms and conditions shall apply to each partial delivery.
6.4 Where the Goods are ready but cannot be dispatched for any reason beyond the control of AEC, or as a result of a force majeure event under Clause 13, or through the fault or delay of the Buyer, AEC shall be entitled to make a reasonable charge in respect of storage and insurance of the Goods.
7. TRANSIT. Claims for damages to Goods occurring in transit or for shortage in delivery or Goods received from carriers will be considered by AEC only if the carriers and AEC received written notification of such damages or shortage within seven (7) days of arrival or, in the event of loss of Goods in transit, within twenty-one (21) days of the date of consignment. Where delivery is taken of Goods without being checked they will be deemed to have been accepted by the Buyer.
8.1 Unless otherwise agreed in writing, AEC will carry out all tests and inspection as it deems necessary. Any additional tests or inspections required by the Buyer will be charged to the Buyer’s account.
9. INTELLECTUAL PROPERTY RIGHTS (“IPR”).
9.1 All IPR in the Goods (including without limitation any and all patent rights, design rights, copyrights and other IPR (whether registered or unregistered) in the specification(s) and design(s) of the Goods or manufacturing processes) shall, as between AEC and the Buyer, be the property of AEC. The Buyer represents and warrants that the use of any design(s), specification(s) and/or instruction(s) (or any part thereof) provided directly or indirectly by the Buyer will not infringe any rights of any third party. The Buyer shall indemnify and hold harmless AEC against any and all claims alleging infringement of trademarks, trade names, patents, copyrights, designs, registered designs and/or any other IPR (including without limitation any “passing off” claims) which arise as a result of AEC’s compliance with the Buyer’s specification(s), design(s) and/or instruction(s) (or any part thereof).
9.2 (i) The Buyer shall notify AEC forthwith of any claim(s) that the sale, use or other exercise of the Goods infringes any IPR and give to AEC all authority and information and every reasonable assistance required by AEC for the defense of any such claim(s) and shall not itself admit, handle, deal with or compromise any such claim(s) except with the written consent of AEC; (ii) The Buyer shall comply with all instructions of AEC and all legislation in relation to the sale, processing, storage and use of the Goods. AEC may without liability cancel or suspend any deliveries or manufacture of any of the Goods which have become the subject of a claim by a third party alleging infringement of any IPR.
10. INFORMATION. All drawings, descriptions, specifications, designs, documents and other information (including without limitation features contained in any of the foregoing or in any objects or software), whether business or technical, (together, “Information”) supplied or otherwise disclosed by AEC are supplied or disclosed on the express understanding that such supply or disclosure shall not be construed as granting to Buyer, expressly or by implication, estoppels, or otherwise, any license under any invention, patent copyright, trademark, or trade secret (or any other rights whatsoever) in such Information. All rights including, without limitation, copyright and property in all such Information shall, as between AEC and the Buyer, remain vested in AEC.
11. AEC WARRANTY.
11.1 Buyer’s exclusive remedy for a nonconformity in workmanship or material of a Good shall, at AEC’s option, be either replacement or repair of the affected Good(s), or the issuance of a credit for the price to the Buyer for the affected Good. AEC’s obligation under this Clause 11.1 shall be in effect for a period of six (6) months from the date of delivery or sixty (60) hours of use (whichever shall first expire) provided that:
(i) AEC is notified in writing within seven (7) days of the discovery of such nonconformity and within the time period specified in Clause 11.1 and the such defective Goods are returned to AEC, transportation charges being prepaid by the Buyer;
(ii) examination by AEC of such Goods shall establish to AEC’s satisfaction that such defects exist and have not been caused by misuse, neglect, improper installation or repair, alteration or accident, or inadequate storage;
(iii) this warranty shall not extend to any products or parts thereof not manufactured by AEC. In the case of products not manufactured by AEC, AEC will, so far as possible, pass to the Buyer the benefit of any warranty or guarantee given to AEC by the manufacturers of such product or part.
11.2 If AEC complies with Clause 11.1, it shall have no further liability for a breach of the warranty in Clause 11.1 in respect of such Goods.
11.3 THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF (A) ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN STATUTE, CONTRACT, TORT, OR STRICT LIABILITY AGAINST AEC OR ITS AFFILIATES, WHETHER OR NOT ARISING FROM THE NEGLIGENCE, ACTUAL OR IMPUTED OF AEC OR ITS AFFILIATES, STOCKHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, ASSIGNS AND AGENTS.
12. EXCLUSION OF LIABILITY.
12.1 Subject to Clause 11, the following provisions set out the entire financial liability of AEC (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of any matters relating to the Agreement including without limitation:
(i) any breach of the Agreement;
(ii) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(iii) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
12.2 Subject to Clause 11.2:
(i) AEC’s total liability under this Clause 12 in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to 10% of the Agreement price (save where Clause 6.2 applies); and
(ii) AEC shall not be liable to the Buyer for any:
(a) loss of profit;
(b) loss of business;
(c) depletion of goodwill and/or similar losses;
(d) loss of anticipated savings;
(e) loss of Agreement;
(f) loss of use;
(g) loss or corruption of data or information; or
any special, indirect, incidental, consequential or pure economic loss, costs, damages, charges or expenses whatsoever (howsoever caused) which arise out of or in connection with the Agreement.
13. FORCE MAJEURE.
13.1 AEC shall not be liable for delay in performance or for non-performance in whole or in part of its obligations under the Agreement direct or indirectly resulting from causes beyond control either of AEC or of AEC’s suppliers including, but not limited to, acts of God, acts of the Buyer or a third party, hostilities, embargoes, sabotage, civil disturbance, government regulations, strikes, lock-outs or other industrial action, illness, flood, fire, impact, explosion, adverse weather, delay in delivery to AEC or AEC’s suppliers or shortage of any services, products or materials.
13.2 In any such event AEC may without liability extend the time for performing the Agreement, cancel the Agreement or reduce the volume of the Goods ordered by the Buyer. If the Agreement is frustrated or cancelled as a result of an event set out in Clause 13.1 AEC shall be entitled to such reasonable remuneration as it may specify.
14. BREACH AND FINANCIAL CONDITIONS.
14.1 If any of the Buyer’s obligations to AEC under any Agreement with AEC are not fulfilled or if the Buyer’s financial condition at any time does not in AEC’s judgment justify continuance of the Agreement on the terms of payment specified, AEC may, without prejudice to any other rights it may have, by notice in writing, cancel any outstanding order or suspend any deliveries of or work on any of the Goods unless the Buyer makes such payment for any of the Goods ordered as AEC may require.
14.2 In addition to any rights of lien to which AEC may by law be entitled, while any amount remains due to it from the Buyer, AEC shall be entitled to a general lien for such amount on all property of the Buyer in AEC’s possession (whether paid for by the Buyer or not).
15. HEALTH AND SAFETY.
15.1 The Buyer hereby agrees that it is responsible for taking all necessary steps to ensure that the Goods are safe and without risks to health when properly used including:
(i) regular and properly testing, inspecting and maintaining, properly installing, storing and housing the Goods,
(ii) disseminating adequate detailed information regarding their sale and proper use to the persons using the Goods, and ensuring that the Goods are adequately manned, and the Buyer’s order for the Goods shall be deemed to be its written undertaking therefore.
16. BUYER’S PROPERTY. Any property of the Buyer received by AEC whether for incorporation in Goods of AEC or for repair or otherwise will be held by AEC at the Buyer’s risk as regards loss or damage whosoever arising (whether due to AEC’s negligence or otherwise). The Buyer shall also accept liability in cases where quantity, quality or delay in delivery of free issue items prejudices AEC’s performance of the Agreement.
17. PROPER LAW AND JURISDICTION. The Agreement will be governed by and construed and enforced in accordance with the substantive laws of the State of New York, except that the United Nations Convention on Contracts for the International Sale of Goods will not apply. The parties agree to the exclusive jurisdiction of the state and federal courts of general jurisdiction of the State of New York and agree not to commence any suit or proceeding, whether directly or indirectly relating or arising from this Purchase Order, except in such courts.
18. CONFIDENTIALITY. Any information or data given in confidence, including Information (as defined in Clause 10), or any confidential drawings or other general commercial intelligence which may be received by the Buyer or any representatives of the Buyer (insofar as it is not demonstrably public knowledge) shall not be divulged to any third party and may be used by the Buyer only in connection with the Goods supplied hereunder and not in any other connection whatsoever. In the event that the
Buyer or any such representative so divulges any such data, drawings, information or intelligence to the detriment of AEC, the Buyer shall indemnify AEC in full against all costs, expenses, damage or loss directly or indirectly occasioned thereby.
19. EXPORTS. In the case of export Agreements the following additional conditions shall apply:
19.1 Buyer and AEC shall comply with the laws and regulations of the United States of America (USA) relating to exports and foreign transactions, including, but not limited to, the International Traffic in Arms Regulations (ITAR) (22 C.F.R. Parts 120-130), the Arms Export Control Act (22 U.S.C. 2778), the Export Administration Regulation (EAR) (15 C.F.R. Parts 730-774) and the Export Administration Act of 1979, as amended (50 U.S.C. 2401 et. Seq.). In particular, the Parties shall not disclose any technical data, nor deliver, export, re-export or re-transfer any Product out of the USA, or to foreign persons or entities within or outside the USA, without prior review and determination by AEC and the proper written authorization and/or license from the U.S. Government. Buyer hereby indemnifies and agrees to hold AEC harmless from any costs, damages, penalties, attorney’s fees and similar expenses of AEC due to Buyer’s breach (or threatened breach) of such obligation. Any governmental license, approval or notification required for export shall be the responsibility of the Buyer. The Parties shall reasonably cooperate with each other in obtaining all required export and import licenses, approvals and/or notifications pursuant to such U.S. laws.
20. SANCTIONS LAWS. All products purchased from Seller will be used in full compliance with all applicable export control and sanctions laws and regulations, and will not be exported, re-exported or transferred (including in-country transfers) or otherwise made available for use, except as authorized by such laws and regulations, including, but not limited to, those administered and enforced by the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury, Office of Foreign Assets Control (“OFAC”) (collectively the “Sanctions Laws” Buyer will not directly or indirectly export, re-export, or transfer to, or otherwise make any Products available for use in, the Crimea region of Ukraine, Cuba, Iran, Democratic People’s Republic of Korea (North Korea), Syria, or any other location in violation of any applicable Sanctions Laws.
21. DATA PROTECTION LAWS. To the extent Buyer provides Seller with information subject to the Data Protection Laws of the European Union (EU), South Korea, China, Brazil, Canada, Mexico, or the United States; Buyer represents and warrants it has the authorization to provide said Data and further, Buyer gives its consent to the processing of data to enable Seller to carry out its legitimate business of providing products and services to the Buyer.
22. SEVERANCE. If any provision of the Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect.
23. WAIVER. Failure or delay by AEC in enforcing or partially enforcing any provision of the Agreement shall not be construed as a waiver of any of its rights under the Agreement. Any waiver by AEC of any breach of, or any default under, any provision of the Agreement by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Agreement.
24. THIRD PARTIES. The parties to the Agreement do not intend that any terms of the Agreement shall be enforceable by any third party that is not a party to the Agreement.
25. ASSIGNMENT. AEC may assign the Agreement or any part of it to any person, firm or company. The Buyer shall not be entitled to assign the Agreement or any part of it without the prior written consent of AEC.
26. BUYER-FURNISHED MATERIAL. When a quotation or Order specifies that material is to be furnished by the Buyer, ample allowances shall be made by the Buyer for reasonable spoilage or scrap of the material so as to facilitate efficient, timely production by Seller.