1. Definitions. The term “Alcoa” means Alcoa Mill Products, a division of Alcoa Inc. The term “Buyer” means the individual, corporation or other legal entity that has submitted an Order to Alcoa. The term “Order” means Buyer’s expressed desire, whether oral or written, to purchase Goods from Alcoa. The term “Goods” means all of the products, materials and related services that Buyer desires to purchase from Alcoa. The sale of the Goods that are the subject of this Order will be governed by the terms of this sales order acknowledgment (“Acknowledgement”).
2. Acceptance. All Orders are subject to acceptance by Alcoa. Acceptance is conditioned on Buyer’s agreement to all of the terms and conditions on the face and reverse side of this Acknowledgment. This Acknowledgment contains the sole terms and conditions that will govern the Order. Buyer’s agreement will be conclusively established; (i) when Buyer has received and retained this Acknowledgment for ten (10) days without objection, or (ii) by Buyer’s acceptance of all or any part of the Goods. Alcoa objects to any terms or conditions which differ from, or are additional to, those stated on the face and reverse side of this Acknowledgment. After acceptance of an Order by Alcoa, the Order and this Acknowledgment may only be modified by a writing signed by Alcoa.
3. Price. Unless specified otherwise in a writing signed by Alcoa, the prices and charges stated on the face of this Acknowledgment will be adjusted to, and the Goods covered by this Acknowledgment will be invoiced at, the prices and charges fixed by Alcoa at the time of shipment, provided that such prices and charges will not exceed the prices and charges appearing on Alcoa’s applicable price schedules, if any, in effect at the time of each shipment. The prices and charges stated on the face of this Acknowledgment do not include state or federal excise, sales or use taxes (if any).
4. Payment. Unless set forth to the contrary on the face of this Acknowledgment, payment terms are net 30 days from date of Alcoa’s invoice. Whenever reasonable grounds for insecurity arise with respect to due payment by Buyer, Alcoa may demand different terms of payment and assurance of Buyer’s due payment. Any such demand may be oral or written and Alcoa may, upon the mailing of such demand, stop production and suspend shipments under this Acknowledgment. If, within the period stated in such demand, Buyer fails or refuses to agree to such different terms of payment or fails or refuses to give adequate assurance of due payment, Alcoa may, at its option, treat such failure or refusal as a repudiation of the portion of the Order which has not been fully performed, or Alcoa may resume production and may make shipment under reservation of possession or of a security interest and may demand payment against tender of documents of title.
5. Delays. Unless a shipping date is specified as firm on the face of this Acknowledgment or in a writing signed by Alcoa, Alcoa will use reasonable efforts to fill this Order in accordance with the estimated shipping date. Alcoa will not be responsible for any delays in filling this Order nor be liable for any losses or damages resulting from such delays, and this Order will not be subject to cancellation for such delays.
6. Force Majeure. Alcoa will not be liable for delays in filling this Order or failure in the performance of any of its obligations caused by accidents, labor disputes, shortages of labor, materials, fuel or power, fires, floods or other acts of God, acts or omissions of Buyer, priorities required, requested, or granted for the benefit of the Federal or any state government, restrictions imposed by Federal or state legislation or regulations, or any cause, whether similar or dissimilar to those enumerated in this section, which is beyond the control of Alcoa.
7. Warranty. Alcoa warrants to Buyer that the Goods will, at the time of shipment, conform to the description on the face of this Acknowledgment, that it will convey good title to the Goods; that such Goods will be delivered free from any lawful security interest or other lien or encumbrance unknown to Buyer, and that such Goods will be free from defects in material and workmanship. ALCOA MAKES NO WARRANTY THAT THE GOODS WILL BE MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE. ALCOA MAKES NO WARRANTY EXPRESSED OR IMPLIED EXCEPT SUCH AS IS EXPRESSLY SET FORTH HEREIN.
8. Inspection, Acceptance or Rejection. Inspection, acceptance or rightful rejection of the Goods must be made within ninety (90) days after Buyer’s receipt of the Goods. Buyer must notify Alcoa within such ninety (90) days if it believes that any Goods delivered under this Acknowledgment are water stained, or otherwise properly rejectable, and hold such Goods pending Alcoa’s inspection.
9. Shipments; Shipping Weights.
(a) Unless set forth to the contrary on the face of this Acknowledgment, Alcoa may make partial shipments and may invoice for each such partial shipment separately. Each partial shipment will be deemed to be a separate sale, however, delay in delivery of any partial shipment will not relieve Buyer of its obligation to accept delivery of remaining shipments under this Acknowledgment.
(b) Absent manifest error, Alcoa’s shipping weights will govern for each shipment or partial shipment under this Acknowledgment. Should Buyer dispute the shipping weight of any shipment or partial shipment under this Acknowledgment, Buyer will promptly notify Alcoa in writing of the reasons for such dispute and provide to Alcoa all necessary documents to substantiate the difference.
10. Limitation of Liability.
(a) Alcoa’s sole liability and Buyer’s exclusive remedy for any tender of nonconforming Goods or breach of warranty, is expressly limited to Alcoa’s choice of: (i) the repair of nonconforming Goods, (ii) the replacement of nonconforming Goods with conforming Goods at the FOB point shown on the face of this Acknowledgment, or (iii) the refund of that portion of the purchase price represented by the nonconforming Goods. Any such repair, replacement or refund will be made only upon return of the nonconforming Goods, which may be returned at Alcoa’s cost only after Alcoa’s inspection and Buyer’s receipt from Alcoa of shipping instructions.
(b) Alcoa will not be liable for any incidental, consequential, indirect, special, contingent, or punitive damages for (i) any breach of warranty, whether based on theories of breach of warranty, breach of contract, tort, strict liability or otherwise, (ii) the tender of defective or nonconforming Goods; or (iii) breach of any other provision of this Acknowledgment. In any event, Alcoa’s liability to Buyer will not exceed the purchase price of the Goods on which such liability is based.
(a) Alcoa agrees to indemnify Buyer against all court assessed damages (excluding consequential damages) and costs resulting from infringement of any United States Letters Patent covering (i) standard commercial compositions offered for sale generally by Alcoa at the time of acceptance by it of this Order, or (ii) standard commercial forms, shapes or constructions offered for sale generally by Alcoa at the time of acceptance by it of this Order, to the extent that such compositions, forms, shapes or constructions are supplied under this Acknowledgment.
(b) Buyer agrees for the Goods delivered under this Acknowledgment to indemnify Alcoa against all court assessed damages (excluding consequential damages) and costs resulting from infringement of any United States Letters Patent to the extent that the infringement arises from designs, specifications or instructions furnished or explicitly or implicitly required by Buyer and different from the matters embraced by section 11(a) above.
(c) The parties agree to provide information and reasonable assistance to each other upon request to the extent such information and assistance are required by such party to defend against any infringement claim arising under this section. Neither party will be entitled to indemnification under this section as to any claim of infringement concerning which it does not give the other party prompt notice in writing upon learning any such claim of infringement and full opportunity, at the expense of such other party, to defend and dispose of such claim of infringement.
(d) The sale of Goods covered by this Acknowledgment will not grant to Buyer any right or license of any kind under any patent owned or controlled by Alcoa, or under which Alcoa is licensed, but the foregoing will not be understood to limit in any way the right of the Buyer to use and sell such Goods, in the event that such Goods as sold under this Acknowledgment are covered by any such patent.
12. Indemnity. Buyer will release, hold harmless, indemnify and defend Alcoa from any liability (including without limitation liability for negligence or strict liability) claims, losses, suits and costs caused by, arising out of or relating to the design of Goods supplied under this Acknowledgment or the design of the packages or containers in which they are shipped if such Goods, packages or containers are made in compliance with Buyer’s design or specification.
13. Termination. Buyer may not terminate this Order or this Acknowledgment without the written consent of Alcoa. If Alcoa consents to such termination, reasonable termination charges, computed by Alcoa, will be assessed in connection with such termination.
14. Delivery and Transportation.
(a) If the shipping terms on the face of this Acknowledgment are FOB destination, Alcoa will deliver and bear the cost of transportation of the Goods to such destination. The method and agency of transportation and the routing will be designated by Alcoa. Excess packing, shipping and transportation charges resulting from compliance with respect to the use of any agency or method of transportation or any routing other than that which would be designated by Alcoa will be for Buyer’s account. In the case of Buyer pick-up, Buyer’s truck is the destination, and unless Alcoa otherwise agrees in a writing, Alcoa will not deliver or bear any cost or make any allowance with respect to Buyer’s pick-up, beyond loading on Buyer’s truck (whether owned by, leased to, or otherwise under contract to Buyer).
(b) If the shipping terms on the face of this Acknowledgment are FOB Alcoa’s plant, the cost of transportation and risk of loss or damage will be borne by Buyer.
(a) Any equipment (including jigs, dies and tools) which Alcoa constructs or acquires for use exclusively in the production of Goods for Buyer will be and remain Alcoa’s property and in Alcoa’s possession and control, and any charges by Alcoa therefore will be for the exclusive use of such equipment only. All such equipment will be used exclusively for the manufacture of Goods for Buyer. When for three (3) consecutive years no Orders acceptable to Alcoa are received from Buyer for Goods to be made with any such equipment, Alcoa may make such use or disposition of such equipment as Alcoa desires, without liability or obligation to Buyer.
(b) Any materials or equipment owned or furnished by Buyer to Alcoa will be handled and stored by Alcoa with the same degree of care that Alcoa handles and stores its own materials and equipment. When for three (3) consecutive years no Orders acceptable to Alcoa are received from Buyer for Goods to be made from any such equipment or materials, Alcoa may, by written notice to Buyer, request Buyer to make disposition of such materials or equipment at Buyer’s expense. If Buyers fails to comply with such notice, Alcoa may make such use or disposition of said materials or equipment as it desires, without liability or obligation to Buyer.
(c) Any equipment specified on the face of this Acknowledgment as returnable, or for which a charge is made or for which a deposit is required, will be returned in accordance with Alcoa’s standard instructions with respect to such equipment.
16. Standard Quality Tolerances. Unless another tolerance is stated on the face of this Acknowledgment, the quantity tolerance applicable to the Goods specified on the Order will be the applicable standard quantity tolerance in effect at the time of shipment of such Goods or portion of such Goods, as reflected on Alcoa’s Price Data Sheets.
17. Buyer Part, Specification Number and Drawing Number. Any such number appearing on the face of this Acknowledgment which is followed by the notation, “IDENT”, means that the Goods referenced will be produced by Alcoa in accordance with such Part, Specification or Drawing, as modified only with Buyer’s prior approval. Any such number appearing on the face of this Acknowledgment which is not followed by the notation, “IDENT”, is for identification purposes only and does not require that the Goods be produced in accordance with such Part, Specification or Drawing.
(a) No provision of this Acknowledgment and no breach of any provision of this Acknowledgment will be deemed waived by reason of any previous waiver or breach of such provision.
(b) This Acknowledgment may be performed, and all rights under this Acknowledgment may be enforced against Buyer, by Alcoa or by any subsidiary or affiliate of Alcoa.
(c) This Acknowledgment may not be assigned by Buyer without the prior written consent of Alcoa.
(d) This Acknowledgment will be governed by, and interpreted in accordance with, the laws of the Commonwealth of Pennsylvania, excluding its law and rules relating to conflict of laws.
(e) With respect to any Orders for shipment outside or the United States, the United Nations Convention on Contracts for the International Sale of Goods will not apply.