Albany International Corp.
Standard Terms and Conditions of Sale
"Albany", "Seller", "Supplier", "We", "Us", or "Our", etc. means the Albany International entity issuing the Sales Order Acknowledgement and Our Affiliates as applicable.
"Buyer", "Purchaser", "You", or "Yours", etc. means the purchasing party with whom We have entered into Agreement.
"Agreement" means Our Terms (contained herein) together with the relevant Sales Order Acknowledgement issued by Us to You.
"Our Terms" means these Standard Terms and Conditions of Sale.
"Goods" means any goods or services We sell to You.
"Affiliate" means an entity that a party controls, is controlled by, or is under common control with, where "control" means the possession of the power to direct, or cause the direction of, the management or policies of a business entity, whether through the ownership of voting securities, by contract or otherwise.
"Force Majeure" means an act of God, war, civil insurrection, act of governmental authority, pandemic, epidemic, material damage to or destruction of Albany's facility, the effects of which could not been avoided by Albany's commercially reasonable efforts and could not have been avoided or corrected through the exercise of reasonable diligence.
1. GENERAL. This Agreement is entered into and all quotations are given subject to Our Terms (herein contained) which may only be varied or waived by a written agreement signed by Us. No Agreement shall be made until We have accepted, in writing, an Order placed by You ("Sales Order Acknowledgment"). If Our Terms differ from the terms of any offer made or order placed by You, then any subsequent communication from Us constitutes a counter offer and not acceptance of Your terms. Any quotation is given by Us on the basis that no Agreement shall come into existence until We dispatch a Sales Order Acknowledgment to You. Any provision or condition of Your purchase order or other document which is in any way different from (or in addition to) Our Terms is specifically rejected and will not be binding on Us. Your acceptance of Our Terms will be conclusively presumed if We don't receive Your objection(s) within 10 days from the date of Our Sales Order Acknowledgement. Objections should be sent via email to Our attorney at Sara.Stankus@albint.com.
2. DESCRIPTIONS. All photographs, drawings, descriptions and details in Our price lists or 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 Our representatives will be binding on Us unless we expressly agree to it in a signed writing.
3. PRICE. All prices are as stated in Our Sales Order Acknowledgement, 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. We reserve the right, by giving written notice to You at any time before delivery, to adjust the price of the Goods to take account of increases in the cost to Us which are due to any factor beyond Our control, including but not limited to costs of components or equipment not manufactured by Us, raw materials, general commodities, freight, insurance, rates of currency exchange, duties, taxes or surcharges or improvements.
4. PAYMENT. Unless otherwise agreed in writing, all payments shall be made in full, without deduction or withholding, in the currency stated on the Sales Order Acknowledgment within 30 days of date of invoice and will be free of setoff or counterclaim by You. Your failure to make payment in accordance with the terms agreed will, without prejudice to any other remedies We may have, render You 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.
5. DELIVERY. As used in this section 5, the term "Delivery" shall mean (a) delivery of the Goods to You in accordance with Our Terms, or (b) that the Good has been completed, boxed, and made available for You at a location (which location may be a Seller plant or warehouse) specified in a Purchase Order. Any periods quoted for Delivery or dispatch are estimates only and time for Delivery will not be made of the essence by notice. We are entitled to make partial Deliveries or Deliveries by installments and Our Terms will apply to each partial Delivery. Where the Goods are ready but cannot be dispatched for any reason beyond Our control (for example, as a result of a Force Majeure event or through Your fault or delay), We shall be entitled to make a reasonable charge in respect of storage and insurance of the Goods. We are responsible for Delivery to one location only. Any transportation to a second location (for example from a warehouse to a plant) is at Your expense.
6. SHORTAGES. Albany, its Affiliates, or any of their respective suppliers, may experience shortages as a result of raw material shortages or shortages in the availability of transportation or as a result of unexpected increases in demand for Goods. Under such circumstances, We may allocate Product to You, in Our sole discretion, and, in addition to Section 11, We are excused from all liability resulting from such shortages or such allocation decisions.
7. TITLE PASSAGE Title will pass to You upon delivery of the Goods in the manner specified in Our Sales Order Acknowledgement.
8. INTELLECTUAL PROPERTY RIGHTS ("IPR"). 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 Us and You, be Our property.
9. 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 Us will be supplied or disclosed on the express understanding that such supply or disclosure will not be construed as granting to You, expressly or by implication, estoppel, or otherwise, any license under any invention, patent, copyright, trademark, or trade secret (or any other rights whatsoever) in such Information.
10. SELLER'S WARRANTIES. This warranty will expire one year from the date of delivery. We expressly warrant that any Good(s) We sell to You under this Agreement are free from defects in material and workmanship under normal use. In the event that any Good proves defective in material or workmanship, We will replace it without charge to You. We expressly warrant that You will acquire good and marketable title to all Goods purchased hereunder, free and clear of all liens and encumbrances. We expressly warrant that all services We perform will be performed in a good and workmanlike manner in accordance with generally accepted practices, and involve no unreasonable risk of injury or damage. Notice of any claimed defect must be made in writing within thirty (30) days of installation. Failure to provide such notice relieves Us from any obligation hereunder.
We assume no responsibility for consequential damages of any kind (including, without limitation, lost production time, lost sales or profits or machine damage) that may result from the use or misuse of Our Goods. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THE FOREGOING, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. LIMITATION ON LIABILTY. Our total liability for all claims of any kind arising from or related to the formation, performance or breach of this Agreement, or any Goods or Services, will not exceed the (i) Agreement Price, or (ii) if Buyer places multiple purchase order(s) under the Agreement, the price of each particular order for all claims arising from or related to that order and ten thousand US dollars (US $10,000) for all claims not part of any particular order.
We will not be liable for loss of profit or revenues, loss of use of equipment or systems, interruption of business, cost of replacement power, cost of capital, downtime costs, increased operating costs, any special, consequential, incidental, indirect, or punitive damages, or claims of Buyer's customers for any of the foregoing types of damages.
All of Our liability shall end upon expiration of the applicable warranty period, provided that Buyer may continue to enforce a claim for which it has given notice prior to that date by commencing an action or arbitration, as applicable under this Agreement, before expiration of any statute of limitations or other legal time limitation, but in no event later than one year after expiration of such warranty period.
12. CANCELLATION OF PURCHASE ORDER(S). You may cancel all or any part of a Purchase Order for any Goods. In the event that You cancels all or any part of a Purchase Order, You shall compensate Us as follows: (a) if the manufacturing is complete, You will be responsible to pay the full selling price when the Goods have been delivered to the location specified by You; and (b) with respect to any Good that has been ordered but for which manufacturing has not been completed, and if such items or materials cannot be diverted to another use, You shall be obligated to reimburse Us for Our actual costs incurred, without mark-up or profit.
13. MACHINE OR MILL CLOSURE. If Buyer announces its intent to indefinitely or permanently shut down a Buyer Machine or to close a facility housing a Buyer Machine for any reason, such Buyer will provide Seller with as much advance notice to Seller as is commercially reasonable to minimize the amount of finished and partially finished Goods for the affected Buyer Machine at the time of shutdown or closure. During such shutdown or closure, such Buyer shall be excused from purchasing any additional Gods for the affected Buyer Machine until such Buyer Machine returns to operation and Seller shall be excused from producing any additional Goods for the affected Buyer Machine. If a particular Buyer Machine is permanently shut down, the applicable Buyer agrees to compensate Seller as described in Clause 12. Such payment shall be made by such Buyer to Seller no later than 30 days after the Buyer Machine shutdown or facility closure. If a Buyer Machine or facility is indefinitely shut down or closed, then after such Buyer Machine or facility has been closed for at least sixty (60) days, the applicable Buyer agrees to compensate Seller as described in Clause 12. Such payment shall be made by such Buyer to Seller no later than 90 days after the Buyer Machine shutdown or mill closure.
14. FORCE MAJEURE. We will not be liable for delay in Our performance or for non-performance in whole or in part of Our obligations under the Agreement directly or indirectly resulting from Force Majeure events or causes beyond Our control including, but not limited to, acts of God, Your acts or omissions or the acts or omissions of a third party.
15. BREACH AND FINANCIAL CONDITIONS. If any of Your obligations to Us under the Agreement are not fulfilled or if Your financial condition at any time does not in Our judgment justify continuance of the Agreement on the terms of payment specified, We may, without prejudice to any other rights We may have, by notice in writing, cancel any outstanding order or suspend any deliveries of or work on any of the Goods.
16. INDEMNIFICATION. Both parties agree to fully defend, indemnify and hold harmless the other party, as well as its officers, directors, employees, agents and assigns, against any and all claims, demands or suits of any third party, or any damages, liability or judgment awarded to such party with respect to such claim, as well any expenses (including, without limitation, reasonable attorneys' fees) incurred by the other party in defending any such claim, in each case to the extent attributable to the negligence or willful misconduct of the indemnifying party. The foregoing indemnity is subject to the receipt by the indemnifying party of prompt notice from the indemnified party of the initiation, or threatened initiation, of any such suit or proceeding.
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, in the United States, without regard to conflict of law principles. The United Nations Convention on Contracts does not apply.
18. CONFIDENTIALITY. Any information or data given in confidence, including Information (as defined in Clause 9), or any confidential drawings or other general commercial intelligence You may receive from Us (as long as the information is not demonstrably public knowledge) must not be divulged to any third party and You may use it only in connection with the Goods supplied hereunder and not in any other manner whatsoever. In the event that You divulge (or any of Your representatives divulge) any such data, drawings, information or intelligence, You will indemnify Us in full against all costs, expenses, damage or loss directly or indirectly occasioned thereby.
19. 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 Goods and services to the Buyer.
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. MISC. This Agreement contains Our entire Agreement with You and supersedes any previous communications, representations, or agreements whether verbal or written, with respect to the subject matter hereof. If any provision of the Agreement is found by any court of competent jurisdiction to be wholly or partly invalid, it will, to the extent of such invalidity, be deemed severable and the remaining provisions of the Agreement and the remainder of such provision will continue in full force and effect. Our failure to enforce or partially enforce any provision of the Agreement will not be construed as a waiver of any of Our rights under the Agreement. Neither party intends for the terms of the Agreement to be enforceable by third parties. We may assign the Agreement or any part of it to any person, firm or company. You will not be entitled to assign the Agreement or any part of it without Our prior written consent. This Agreement is drafted and accepted in English. While You may, at Your own expense, translate the Agreement into any language, the English language version will prevail in the event of any inconsistency.
22. WAIVER. The failure of Supplier to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any rights or the obligations of Buyer with respect to such future performance and shall continue in full force and effect.
Revision April, 2023