ROCKMOUNT RESEARCH AND ALLOYS, INC.
Terms and Conditions of Sale
1. As used in this Contract, “ROCKMOUNT” means Rockmount Research and Alloys, Inc., a Colorado corporation and all of its affiliates as they may exist from time to time. For purposes of the limitations of liability and remedies set forth by Section 9 of this Contract and the indemnification provisions set forth by Section 10 of this Contract, “ROCKMOUNT” shall include all shareholders, directors, officers, employees, agents, and representatives of ROCKMOUNT. “Buyer” means the party purchasing the Goods, including any affiliates, as they may exist from time to time. “Third Party” means every person, government entity, or other entity other than ROCKMOUNT and Buyer. Whenever a term defined by the Washington Uniform Commercial Code (“Code”) is used in this Contract, the definition contained in the Code shall control its meaning.
2. These Terms and Conditions of Sale together with the provisions on the face hereof constitute a contract (“Contract”) by ROCKMOUNT RESEARCH AND ALLOYS, INC. (“Rockmount”) to sell to Buyer the goods identified on the face hereof or in documents incorporating this Contract by reference (the “Goods”). Delivery to and acceptance by Buyer of any part of the Goods constitutes the contract for ROCKMOUNT to sell and Buyer to buy and pay for such Goods, expressly and exclusively limited to these terms, conditions and limitations herein. Buyer can reject this Contract by returning the Goods to Rockmount. This Contract does not constitute an acceptance by ROCKMOUNT of any Contract or counter Contract of Buyer and serves as a written rejection of any additional, different, or inconsistent provisions, terms, conditions or limitations contained in or incorporated by reference in any forms, purchase orders or other documents of Buyer that already have been or hereafter shall be presented to ROCKMOUNT with respect to this Contract. If notwithstanding the foregoing, this Contract is deemed by a court with binding legal authority over the enforcement of this Contract to be an acceptance by ROCKMOUNT of a Contract or counter Contract by the Buyer, that acceptance is expressly made conditional on Buyer’s assent to the provisions, terms, conditions and limitations set forth in this Contract and waiver of the provisions, terms, conditions and limitations set forth by the Contract or counter Contract of Buyer that are inconsistent with the provisions, terms, conditions and limitations in this Contract. In any case, upon acceptance of the Goods by Buyer, this Contract constitutes the entire agreement between ROCKMOUNT and Buyer with respect to the matters specified in this Contract and supersedes all of their prior and contemporaneous agreements and understandings, negotiations, inducements, representations or conditions, whether oral or written, whether express or implied, with respect to such matters. The provisions, terms, conditions, and limitations set forth in this Contract can be modified, altered, or added to only by a subsequent written instrument signed by an authorized representative of ROCKMOUNT. Failure by ROCKMOUNT to enforce any of the provisions, terms, conditions and limitations of this Contract shall not constitute a waiver of those provisions, terms, conditions and limitations or a waiver of any other provisions, terms, conditions and limitations in this Contract, and the failure of ROCKMOUNT to exercise any right arising from default of Buyer or otherwise shall not constitute a waiver of that right or any other rights. No inconsistent course of dealing or course of performance between ROCKMOUNT and Buyer, or usage of trade or industry custom, if any, prior to, contemporaneous with or subsequent to the making of this Contract shall waive, vary serve to explain or serve to interpret any of the provisions, terms, conditions and limitations of this Contract.
3. (a) Unless otherwise specified on the face of this Contract or agreed to by ROCKMOUNT in writing, prices set forth in ROCKMOUNT’s current price schedule at the time of the Contract shall be ROCKMOUNT’s valid Contracted sales prices for the Goods, provided that ROCKMOUNT reserves the right to change the price of any Goods prior to shipment. ROCKMOUNT also has the complete and absolute discretion to modify or to discontinue any goods, including the Goods, at any time. Requests for additional goods cannot be accepted as part of this order after any portion of this order has been processed. ROCKMOUNT reserves the right to limit the quantity of Goods supplied under this Contract on the basis of availability.
(b) Unless otherwise specified on the face of this Contract or agreed to by ROCKMOUNT in writing, payment terms are net 30 days from the date of invoice. All amounts remaining unpaid at expiration of such 30 days are deemed past due amounts. ROCKMOUNT may assess a 1.5% per month late charge or the maximum late charge permitted by applicable law, whichever is greater, on past due amounts. All prices for Goods shall be paid in U.S. currency. In the event of anticipatory breach of this Contract by Buyer, if Buyer fails to make timely payment of the price of any goods, including the Goods, from ROCKMOUNT, or if ROCKMOUNT has any commercially reasonable doubts at any time regarding Buyer’s ability to pay its debts as they become due, ROCKMOUNT may (i) require full or partial payment in advance for any goods, including the Goods in immediately available federal funds, or (ii) cancel any further deliveries of any order of goods, including the Goods. If pursuant to this provision, ROCKMOUNT shall defer any shipments or cancel in whole or in part the delivery of the Goods, Buyer shall be liable for and reimburse ROCKMOUNT for all losses, expenses, and damages, including any and all direct and consequential damages, incurred or suffered by ROCKMOUNT as a result of the deferral or cancellation.
(c) For all Goods shipped to Buyer’s locations in the United States of America (“U.S.”), orders received with less than a currently published net price value of $100.00 will be invoiced at the minimum order value of $100.00 or at list price, whichever is greater. For all Goods shipped to Buyer locations outside of the U.S., orders received with less than a published net price value of $1,000.00 will be invoiced at the minimum order value of $1,000.00 or at list price, whichever is greater.
4. Unless otherwise specified on the face of this Contract, the purchase price of the Goods does not include transportation/handling charges and taxes, sales, use, excise, import or any similar tax or other governmental charge arising in connection with the sale, purchase, manufacture, processing, fabrication, delivery, storage, use, consumption, or transportation of the Goods. The amount of any transportation/handling charges and taxes, sales, use, excise, import or any similar tax or other governmental charge applicable to this Contract and to the sale and/or furnishing of the Goods shall be deemed extra charges and shall be invoiced to and paid by Buyer.
5. ROCKMOUNT shall not be liable for its failure to perform under this Contract due to circumstances beyond its control, including, without limitation, fire, flood, earthquake, pestilence or similar catastrophe; war, insurrection, act of a governmental agency, act of terrorism, or strike; lack or failure of transportation facilities, shortage of suitable parts, materials or labor; any existing or future law, proclamation, or order of any governmental agency; inability to secure fuel, materials, supplies, equipment or power at reasonable prices or in sufficient amounts; act of God or other public enemy; or any other event or cause beyond ROCKMOUNT’s reasonable control, including, without limitation, any delay cause by Buyer (each, a “Force Majeure”). If any Force Majeure prevents ROCKMOUNT’s performance of any of its obligations under this Contract, ROCKMOUNT shall have the right to (a) change, terminate or cancel this Contract or (b) omit during the period of the Force Majeure all or any portion of the quantity of the Goods deliverable during that period, whereupon the total quantity deliverable under this Contract shall be reduced by the quantity omitted. If due to any Force Majeure ROCKMOUNT is unable to supply the total demands for any Goods to be delivered under this Contract, ROCKMOUNT shall have the right to allocate its available supply among its customers in whatever manner ROCKMOUNT deems to be fair and equitable. In no event shall ROCKMOUNT be obligated to purchase materials from other than its regular sources of supply in order to enable it to supply Goods to Buyer under this Contract. No change, cancellation or proration by ROCKMOUNT shall be deemed to be a breach of any provision, term, condition, or covenant of this Contract.
6. (a) Shipping dates are provided to Buyer on the basis of ROCKMOUNT’s best estimate for informational purposes only and are not guaranteed.
(b) Unless otherwise specified on the face of this Contract, all domestic and international deliveries of the Goods shall be F.O.B. ROCKMOUNT’s shipping point. Risk of loss for all of the Goods and responsibility for insurance coverage therefore shall pass to Buyer upon ROCKMOUNT’s delivery to the point of shipment or upon tender to Buyer’s agent, as the case may be.
(c) Unless otherwise specified on the face of this Contract, ROCKMOUNT may, at its discretion, use any commercial carriers for shipment of the Goods. ROCKMOUNT will use reasonable efforts to comply with Buyer’s requests as to method and route of transportation, but ROCKMOUNT reserves the right to use an alternate method or route of transportation, whether or not at a higher rate.
(d) Buyer shall pay all insurance costs in connection with delivery of the Goods, if any, and be responsible for filing and pursuing claims with carriers for loss or damage in transit, unless these obligations are assumed expressly in writing by ROCKMOUNT.
(e) Unless otherwise specified on the face of this Contract or agreed to by ROCKMOUNT in writing, Buyer shall be responsible for obtaining all necessary transportation licenses and permits for the Goods at Buyer’s sole expense.
(f) If Buyer is unable to receive the Goods when they are tendered, Buyer shall be liable for and reimburse ROCKMOUNT for all losses, expenses, and damages, including any and all direct and consequential damages incurred or suffered by ROCKMOUNT as a result of Buyer’s inability to receive the Goods when they are tendered.
(g) For all Goods shipped to Buyer’s locations in the U.S., claims for shortages or discrepancies will be deemed waived by Buyer unless made in writing to ROCKMOUNT within five (5) days of receipt of shipment. For all Goods shipped to Buyer’s locations outside of the U.S., claims for shortages and discrepancies in part number or quantity received versus part number or quantity shown on the packing list will be deemed waived by Buyer unless made in writing to ROCKMOUNT within thirty (30) days of the Goods’ shipping date. Otherwise the Goods will be considered “received as listed on the packing list” and the shipment complete.
7. Rockmount warrants only that the Goods will conform to the express representations and descriptions contained in ROCKMOUNT’s sales literature which has been provided to Buyer in connection with the sale of the Goods. THIS CONSTITUTES THE SOLE WARRANTY MADE BY ROCKMOUNT AND THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THOSE DESCRIBED HEREIN OR TO ANYONE OTHER THAN BUYER. ROCKMOUNT HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY CONTRACT, AT LAW, IN EQUITY, BY STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO THE GOODS, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY AGAINST REDHIBITORY DEFECTS, AND ANY WARRANTY AGAINST PATENT, COPYRIGHT, TRADEMARK, TRADE NAME, TRADE SECRET INFRINGEMENT AND ANY OTHER TYPE OF INTELLECTUAL PROPERTY RIGHT INFRINGEMENT UNDER THE LAWS OF ANY NATION, INCLUDING, WITHOUT LIMITATION, THE LAWS OF THE U.S.
8. Notwithstanding any other remedies made available by the Code, or ROCKMOUNT’s obligations with respect to any Goods subject to warranty under Section 7 hereof shall be limited at ROCKMOUNT’s option to (a) the repair or replacement of the defective components or parts of the Goods, or (b) the refund of ROCKMOUNT’s actual sale price of any Goods that ROCKMOUNT reasonably determines, upon its examination following its receipt of notice of a claimed defect or deficiency, to have been defective or to have failed to conform to the description on its container or label when it left ROCKMOUNT’s possession. Returned goods shall be at Buyer’s risk and expense. The remedies hereby provided shall be the sole and exclusive remedies of Buyer with respect to any breach of the express warranty in Section 7 hereof, and ROCKMOUNT authorizes no Third Party and/or Buyer, to assume for it any other obligation or liability in connection with any Goods. ROCKMOUNT’s obligations for any breach of the warranty in Section 7 hereof shall be void unless ROCKMOUNT receives written notice of the alleged breach within thirty (30) days after Buyer has knowledge of such breach.
9. ROCKMOUNT’s total liability to Buyer and any Third Party with respect to the Goods (whether as to Goods delivered or for delayed delivery or for non-delivery of goods and whether the claim is based on warranty, on contract, on negligence, on tort, on strict liability, on products defects or otherwise), shall not exceed the amount of the purchase price of the Goods with respect to which the claim is made, and Buyer hereby releases ROCKMOUNT from any claim in excess of the aggregate purchase price of those Goods purchased by Buyer from ROCKMOUNT during the most recent twelve months immediately prior to the date such claim is made. IN NO EVENT SHALL ROCKMOUNT BE LIABLE TO BUYER FOR ANY CIRCUMSTANTIAL, CONSEQUENTIAL, CONTINGENT, EXEMPLARY, INCENDENTAL, INDIRECT, LIQUIDATED, MATERIAL, PUNITIVE, SPECIAL, SPECULATIVE OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS OR REVENUES, LOST BUSINESS OR BUSINESS INTERRUPTIONS ARISING IN ANY MANNER IN CONNECTION WITH THIS CONTRACT AND THE SALE, DELIVERY AND USE OF THE GOODS. Without limiting the generality of the foregoing, Buyer assumes any and all risks and liability for operation costs, general effectiveness, success or failure of the Goods. Except as otherwise expressly provided in Section 17, hereof, no legal action, regardless of form, arising out of or in connection with the transactions under or occurrences arising out of this Contract and/or use of the Goods may be brought by either party hereto more than one (1) year after the cause of action has accrued, except that an action for nonpayment for Goods purchased hereunder may be brought by ROCKMOUNT within one (1) year after the date of Buyer’s last payment on its account with ROCKMOUNT.
10. Buyer hereby does indemnify, hold harmless and agrees to defend ROCKMOUNT from and against any and all damages, liabilities, losses, costs, expenses and fees (including reasonable attorneys’ fees and court costs), including, but not limited to, all losses related to property damage, loss of profits or revenues, loss of use of any property, cost of capital, cost of purchases or replacement goods or temporary equipment, personal or bodily injury, or death, and/or for arising from any suits, claims, counterclaims, demands, judgments and other actions (each, a “Claim”), regardless of whether a Claim is based on theories of contract, tort, negligence, strict liability, warranty, indemnity, contribution, statute, or otherwise, including without limitation, all Claims relating to injury to and/or death of any and all persons and for loss of and/or damage to property arising from or in connection with (a) Buyer’s efforts and activities to promote, market, sell and distribute the Goods, including, without limitation, any acts or omissions of every kind and character of its employees, representatives and agents arising in connection with or pursuant to those sales efforts, (b) the use, handling, repair, alteration, adjustment, operation or modification of the Goods by Buyer and any of Buyer’s employees, representatives or agents, and (c) any claims of patent, trademark or other intellectual property infringement for Goods manufactured in accordance with Buyer’s specifications. Buyer’s obligation to indemnify, defend and hold harmless ROCKMOUNT extends to instances where ROCKMOUNT is alleged or found to be negligent. For any Claim with respect to which it has an indemnification right under this Section 10, ROCKMOUNT shall have the option to defend such Claim with counsel of ROCKMOUNT’s own selection at the sole cost and expense of buyer. If ROCKMOUNT, at its option, chooses to defend a Claim, Buyer agrees to cooperate with and assist ROCKMOUNT in its defense in whatever reasonable ways ROCKMOUNT chooses.
11. Any term or provision of this Contract held to be invalid, illegal or unenforceable shall be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof.
12. The validity, interpretation and performance of this Contract shall be governed by the laws of Washington, without reference to any conflicts of law provision of Washington and expressly excluding the United Nations Convention on Contracts for the International Sale of Goods. Buyer expressly submits to the exclusive jurisdiction of and venue in the state and/or Federal courts located in Vancouver, Washington with respect to all lawsuits arising under or in connection with this Contract. Buyer hereby consents to extra-territorial service of process with respect to all lawsuits arising under or in connection with this Contract and waives any defenses pertaining to the inconvenience of venue of the litigation being at Vancouver, Washington. IN THE EVENT OF LITIGATION PERTAINING TO, ARISING UNDER OR IN CONNECTION WITH THIS CONTRACT, BUYER HEREBY WAIVES ANY RIGHT THAT IT MAY HAVE TO A JURY TRIAL OF ANY OR ALL OF THE ISSUES THAT MAY BE RAISED IN THAT LITIGATION. Nothing contained in this Contract shall be construed to limit or waive any rights of ROCKMOUNT under applicable Federal, state or local laws.
13. Buyer may not, by operation of law or otherwise, assign this Contract, its rights hereunder or delegate its obligations hereunder to any Third Party without the prior written consent of ROCKMOUNT, and any purported or attempted assignment or delegation without consent shall be null and void.
14. This Contract shall inure to the sole and exclusive benefit of ROCKMOUNT, Buyer and their respective successors and permitted assigns. This Contract shall have no Third Party beneficiaries.
15. Diversion of all Goods contrary to U.S. law is prohibited. Buyer will not supply, tranship or re-export any Goods to any country currently or that in the future may be subject to embargo under the laws of the U.S., including Cuba, Iran, Sudan, Syria and Burma (Myanmar).
16. Any notices or other communications required or permitted under this Contract to be given to ROCKMOUNT or Buyer shall be in writing and shall be given to ROCKMOUNT or Buyer at the following address and telefax number, if to ROCKMOUNT: Rockmount Research and Alloys, Inc. Box 2909 Vancouver, WA 98668 Fax (360)254-2332. If to Buyer: At the address and/or telefax number set forth on the face hereof or such other address or telefax number as one party may provide in writing to the other party. Such notice or communication shall be effective (i) if given by telefax, when such telefax is transmitted to the telefax number specified above and appropriate acknowledgement of receipt of such telefax is received by Buyer, or if given by other means, when delivered at ROCKMOUNT’s or the intended addressee’s address specified in this Section 16.
17. Notwithstanding anything to the contrary contained in this Contract, the provisions of Sections 8., 9.,10.,12., and any other provision that by its nature shall survive in order to effectuate the manifest intent of the Contract, shall survive shipment of Goods to Buyer and Buyer’s payment for such Goods indefinitely.