Standard Terms and Conditions of Sale -
CUTMETALL North America LP

June 01, 2023

1. Acceptance and complete agreement

All orders placed for products (the “Products”) and/or services (the “Services”), as applicable, furnished by Cutmetall North America LP ("Seller") to the purchaser thereof (the “Buyer”) are subject to the terms and conditions set forth herein and any Schedules attached hereto (collectively, these "Terms”) and the order acknowledgment from Seller accepting the order for the Products or Services (the "Order Acknowledgment", collectively with these Terms, the "Contract") whether or not specifically referenced. No additional or different Terms or conditions or any modifications, changes or amendments to the Contract shall be binding upon the Seller unless specifically agreed to in writing by an authorized representative of Seller. Seller hereby objects to, and rejects, any additional or different Terms already or hereafter proposed by Buyer, whether contained in any of Buyer's documentation including, without limitation, a purchase order, acknowledgement or other form, or in any other communication received by Seller from Buyer. Seller’s acceptance of any or all of the Buyer’s orders for Products or Services is conditional upon Buyer’s assent to the Terms of the Contract in lieu of the Terms contained in any of Buyer’s communications or documentation. The Contract constitutes the entire agreement between Seller and Buyer, superseding all prior oral or written communications.

2. Delivery and delay

All quoted delivery dates are estimates only. Claims for shortages or other errors occurring before delivery of the Products to the carrier may be made in writing to Seller within two (2) weeks after receipt of shipment; and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer, provided that such claims are subject to Section 10 herein and Buyer’s compliance with Seller’s returned goods policy, which will be provided to Buyer upon request. Title and risk of loss to all Products shall pass to Buyer on the date which the Products are ready for dispatch in Seller's factory ("Ex Works").

3. Shipment

All shipments are EXW, Seller’s factory (Incoterms 2010). Buyer shall be responsible for arranging transportation and for all shipping charges, including but not limited to shipping, transportation, duties and insurance costs. Seller’s responsibility for damaged goods ceases upon acceptance by carrier and all claims for loss or damage during shipment must be filed by Buyer with the carrier. If shipment is delayed by or through Buyer, final payment shall become due and risk of loss and title shall pass to Buyer on the date the Products were ready for shipping. Any of the Products whose manufacture or shipment is delayed by or through Buyer, may be placed in storage by Seller where Buyer shall incur all costs associated with such storage. Partial deliveries are admissible.

4. Orders and price

All prices and delivery quotations made by Seller are conditioned upon these Terms. No order shall be binding upon Seller until received and accepted by an authorized representative of Seller. Buyer will be billed at Seller's prices stated at the time of order acceptance by Seller. All prices and special Terms offered by Seller will expire on the date specified in the proposal or, if no specific date is stated therein, thirty (30) days from the date such pricing or Terms were originally proposed by Seller. All prices are subject to adjustment due to changes in specifications, quantities, shipment arrangements or other Terms and conditions which are presented and were not part of the original price quotation.

5. Taxes and other charges

Unless otherwise specified or required by law, all prices will be quoted and billed exclusive of customs, duties, permit fees or taxes, and Buyer shall be responsible for all such applicable additional amounts (exclusive of taxes on Seller's income). If exemption from such taxes is claimed, Buyer must provide a certificate of exemption at the time its order is submitted to Seller, and Buyer shall indemnify Seller for any unpaid taxes, as well as any penalties and interest, in the event such exemption is not applicable and/or any such taxes, penalties and/or interest is charged to Seller.

6. Payment

Terms of payment are net thirty (30) days from the date of Seller's invoice and shall be made in U.S. dollars. Seller reserves the right to modify its credit Terms as necessary. If delivery is delayed by Buyer, date of notice of readiness for delivery shall be deemed to be date of delivery for invoice purposes. Any late payments are subject to a finance charge at the maximum amount allowed by law. If Buyer fails to comply with these payment Terms, Seller reserves the right to withdraw credit, suspend or cancel performance under any or all of Buyer's outstanding orders and all of Buyer's obligations to Seller shall become immediately due and payable. Buyer shall have no right to withhold any amount due to Seller under these Terms and conditions based upon a claim Buyer may have against Seller. If Seller engages counsel in respect to any late payment or default, Buyer will pay, in addition to the balance due and owing all collection costs, court costs, administrative costs, investigation costs, reasonable attorneys’ fees and all other incidental costs, charges or expenses incurred in the collection of past due amounts or otherwise resulting or arising from any contractual breach by Buyer If Buyer fails to pay any amount as it is due hereunder, and such failure continues for five (5) days following written notice to Buyer thereof, in addition to all other remedies available under the Contract or law (which Seller does not waive by the exercise of any rights under the Contract), Seller shall be entitled to suspend the delivery of any Products or provision of any Services, under this or any other Contract between the parties.

7. Security interest

To the extent any Product is sold to Buyer on credit, Buyer hereby grants to Seller a security interest in all such Products sold to Buyer on credit until the purchase price for such Products has been paid in full to Seller. Buyer also hereby authorizes Seller to file any initial UCC financing statements, continuation statements or amendments thereto necessary to effectuate and perfect such security interest and the proceeds thereof.

8. Cancellation by Buyer—rescheduling

Buyer may cancel its order, reduce quantities, revise specifications or extend delivery schedules as long as Seller is notified in writing prior to the cancellation deadline, if any, set forth in the Order Acknowledgement. Seller may invoice Buyer for cancellation fees which shall consider all expenses incurred and committed by Seller at the time of cancellation by Buyer, and Buyer will, within 30 days of cancellation, pay such cancellation fees to the Seller.

9. Cancellation by Seller—rescheduling

Seller reserves the right to cancel any orders placed by Buyer, or to refuse or delay shipment thereof, if Buyer (a) fails to make any payment as provided in the Contract or under the Terms of payment set forth in any invoice or otherwise agreed to by Seller and Buyer, (b) fails to meet reasonable credit or financial requirements established by Seller, including any limitations on allowable credit, or (c) otherwise fails to comply with the Contract.

10. Returns

Any return of the Products to Seller will be made only upon Seller’s issuance of a Returned Goods Authorization (“RGA”). Such RGA number must be displayed prominently on the outside of the packaging that contains the returned Product. Any Products returned to Seller without a RGA number may be refused and returned to Buyer at Buyer’s expense. Except as otherwise provided herein, returns will not be accepted by Seller for any reason other than for verifiable Product defects within the applicable warranty period. If Seller authorizes a return, Seller reserves the right to credit, replace, or repair material at its discretion. Unless otherwise stated, a restocking fee of 20% of the sales price may be charged on Products returned in original condition.

11. Warranty

11.1. General warranty:

Seller, at its option, shall repair or replace at the Seller’s factory, Ex Works (EXW) (Incoterms 2010), the Seller’s parts described in this Proposal which are found to be defective in material or in workmanship (1) for up to one year from date of shipment for wear of parts (including but not limited to die plates, filter screens, bearings) or until the item(s) require replacement due to normal wear, whichever is less, and (2) for up to one year from date of shipment for any other new Product or new parts, provided the Product has been installed, is maintained, and is operated by Purchaser in accordance with Seller’s instruction or, if there are no instructions, by generally approved best practices, and provided further that Purchaser notifies Seller in writing within ten (10) days from the date the alleged defect becomes apparent. All new Products and components thereof that have been manufactured, assembled, conditioned or remanufactured by anyone other Seller are sold subject to the applicable manufacturer or supplier warranty and disclaimers. Seller makes no warranty with respect to such new Products and components unless it expressly does so in writing at the time of the sale. Seller’s warranty does not cover deterioration or wear of parts (parts that come directly or indirectly in contact with the polymer or other material being processed) from normal use, or failure, due to chemical attack, chemical reaction, excessive pressure, over-heating or physical abuse.

11.2. Additional Terms pertaining to warranties:

Deviations from published specifications which do not materially affect performance of the Products covered hereby (including, without limitation, tolerances and variations consistent with usages of trade and Seller’s regular mill practices concerning dimension, weight, section, composition, and chemical and mechanical properties) shall not be deemed to constitute a breach of warranty. Seller's warranty does not apply to any Product specification required by Buyer or any Product that has been subject to misuse or neglect, or damaged by accident (including fall, fire, exposure to water and abnormal electrical exposure), or which has been modified by anyone without the Seller's authorization. The Product warranty herein shall extend only to Buyer and does not extend to Buyer's affiliates or customers. Any separately listed item of the Product(s) which is not manufactured by Seller is not warranted by Seller, and shall be covered only by the express warranty, if any, of the manufacturer thereof. Buyer will address any such warranty claims with the manufacturer. Seller's liability under its warranties shall be limited solely to the repair or replacement of parts of the Product under the applicable warranty if the applicable warranty period has not expired. If the warranty period has expired, Seller shall not be liable for any damages of any kind whatsoever. The remedies set forth herein constitute the sole and exclusive remedies available to Buyer regarding any breach of warranty claim. Except for the express warranties made in this section, Seller disclaims all warranties, whether statutory, expressed or implied, including all warranties arising from course of dealing, custom or trade and including, but not limited to, the implied warranties of merchantability, fitness for a purpose and non-infringement. If Buyer shall fail to pay when due any portion of the purchase price or any other payment required from Buyer to Seller under this Contract or otherwise, all warranties and remedies granted under this section may, at Seller’s option, be terminated.

12. Ethical business practices and compliance with applicable laws

12.1. The Parties agree that neither Party, nor their respective employees, agents, representatives or other intermediaries will engage in any activity that may be construed to be in violation of their respective codes of ethical business practices or applicable laws. Buyer acknowledges and agrees that it shall not, in regards to the sale or resale of the Products, make any payment or transfer of value to any third party (including through any or multiple intermediaries) that would cause either Buyer, Seller or Seller’s affiliates to violate applicable laws, including, but not limited to, the U.S. Foreign Corrupt Practices Act or any other applicable anti-corruption laws.

12.2. Use of the Products may be governed by various international, federal, national, state or local laws, rules, regulations, or safety codes including, but not limited to, the Occupational Safety and Health Act ("OSHA") and current regulations and standards applicable under OSHA (collectively, “Laws”). Buyer acknowledges that the Products may require certain additional safety guards and devices, including, without limitation, noise insulation, interlocks and interconnections, before such Products can be used in compliance with such Laws (including OSHA). Buyer assumes the entire responsibility for the installation of such safety guards and devices, including noise insulation, as may be required by the Laws notwithstanding that Seller may not provide such guards or devices with Products. Buyer agrees to operate the Product in accordance with all operating instructions and in accordance with all Laws.

12.3. The Parties acknowledge and agree that materials or technical data may not be exported from the United States or to a foreign national in the United States without properly complying with all relevant requirements of the U.S. Export Administration Regulations (“EAR”) 15 CFR Part 772 and the U.S. International Traffic in Arms Regulations (“ITAR”) 22 CFR Part 120.

13. Resale/ultimate user

13.1. If Buyer is an OEM, engineering contractor, distributor, or other retailer who has purchased Products for resale, Buyer agrees to sell such Products subject to these Terms and to advise the Buyer in writing thereof prior to the resale of such Products.

13.2. If the ultimate user of the Products is located in a country in which Seller has a distributor and a distributor is entitled to a commission from Seller on the Products shipped into such country and Buyer did not identify in writing to Seller the ultimate user and the country in which the ultimate user is located, in addition to all other amounts due to Seller hereunder, Buyer agrees to reimburse Seller for all commission and other expenses incurred as a result of the Buyer’s shipment of the Products into a country where Seller has a distributor.

14. Intellectual property rights

14.1. All intellectual property rights in, or relating to, the Products or Services are owned by or licensed to Seller. The sale of any Products or Services to Buyer in no way conveys to Buyer, either expressly or by implication, any intellectual property ownership or license whatsoever.

14.2. Seller shall always have and retain title and full ownership of all software, firmware programming routines, and documentation thereof supplied by Seller for use with the Product, and of all copies thereof made by Buyer (collectively “Software”). Seller grants Buyer a non-exclusive and non-transferable license to use such Software solely for use with the Product. Buyer shall take all reasonable steps to protect Seller’s proprietary interest in the Software and shall not transfer or otherwise provide the Software to any third party.

15. Indemnification

15.1. By Buyer:

Buyer shall defend, indemnify and hold harmless Seller and its officers, directors, employees, agents and shareholders from and against any and all Losses arising out of the use, operation or possession of the Products by Buyer or its affiliates, directors, employees, agents or representatives; the negligent or willful act or negligent or willful omission of Buyer or its affiliates, officers, directors, employees, agents or representatives; or the alteration or modification of the Products or the use or combination of the Products with other Products, devices or Services by Buyer or its affiliates, directors, employees, agents or representatives.

15.2. By Seller:

Seller agrees to defend, indemnify, and hold harmless Buyer and its officers, directors, employees, agents and shareholders from and against any and all Losses arising out of the negligent or willful acts or omissions of Seller or its affiliates, officers, directors, employees, agents or representatives; and any and all lien notices, lien claims, liens, encumbrances, security interests, or other lien rights of any kind filed by any party including without limitation, any subcontractor, which in whole or in part are based in Products or Services provided to Buyer.

16. Confidential information

A party (the "Receiving Party") shall keep in strict confidence all information which is of a confidential nature (including any technical or commercial documents, know-how, specifications, inventions, processes or initiatives) and has been disclosed to the Receiving Party by the other party (the "Disclosing Party"), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its Products or its Services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors which need to know it for discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. The Receiving Party shall remain liable for breach of such obligations by the Receiving Party's employees, agent and subcontractors. The Receiving Party shall only use or make copies of confidential information (including any reproductions, extracts or analyses of that confidential information) in connection with and to the extent necessary for the performance of its obligations and the exercise of its rights under the Contract.

17. Limitation of liability

17.1. Incidental and consequential damages:

Seller’s liability, with respect to the Products and Services provided hereunder, shall be limited to the amount received by Seller for the Products or Services giving rise to any claim hereunder. Seller shall not be subject to, and expressly disclaims all indirect, special, exemplary, punitive, consequential, incidental and contingent damages whatsoever, resulting from Seller's performance or failure to perform under the Contract or the furnishing, performance or use of any Products sold or Services rendered pursuant hereto, whether due to breach of Contract, breach of warranty, strict liability, product liability, the negligence of Seller or otherwise, and whether or not such loss was foreseeable or whether seller has been advised of the possibility of such damages.

17.2. Specifically excluded damages:

Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property or personal injury damages, penalties, damages for lost profits or revenues, loss of use of Products or any associated equipment, cost of capital, cost of substitute Products, facilities or Services, down time, shut down or slow down costs, or for any other types of economic loss, and for claims of Buyer’s customers or any third party for any such damages.

17.3. Remedies:

The damage limitations provided in these Terms and conditions and the remedies stated herein shall be exclusive and shall be Buyer’s sole remedy (except as otherwise expressly provided herein). This limitation on liability shall survive failure of any essential purpose.

18. Modification—waiver

No modifications to these Terms and conditions shall be enforceable except when in writing and signed by both parties, unless otherwise expressly stated herein. Seller shall not be deemed to have waived any of its rights, powers, or remedies under these Terms and conditions, or at law or in equity unless such waiver is in writing and is executed. No delay or omission by Seller in exercising any right, power, or remedy shall operate as a waiver thereof or of any other right, power, or remedy. No waiver by Seller of any default shall operate as a waiver of any other default, or of the same default or another occasion.

19. Severability

If any provisions of the Contract shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any legal and enforceable provisions hereof which shall be construed as if such illegal and unenforceable provision or provisions had not been inserted herein, unless such illegality or unenforceability shall destroy the underlying business purpose of the Contract.

20. Assignability

Buyer may not assign any Contract without Seller's prior written consent. Seller may assign any Contract to an affiliate of Seller or to an acquirer of control of Seller's equity or substantially all its assets.

21. Force Majeure

Seller shall not be liable for any loss, delay or failure to perform resulting from any circumstance, direct or indirect, reasonably beyond its control including, without limitation such as e.g. war, terrorism, natural disasters, fire damage, epidemics, traffic and operating disruptions, strikes, lockouts, riots, raw material scarcities, shortages of auxiliaries, energy or labour, orders and measures of public authorities (such as for example export prohibitions, quarantines), default by Seller's own suppliers, fire, flood, accident, explosion, mechanical breakdown, strike or other labor trouble, plant shutdown, unavailability of or interference with the usual means of transporting the Products or any law, regulation, order, recommendation or request of any governmental authority having or claiming to have jurisdiction over Seller, its subcontractors and/or its suppliers.

22. Governing law—exclusive jurisdiction and venue

The Contract shall be governed and construed according to the laws of the Seller’s state of Georgia as applicable to the Seller’s specific location], without reference to principles or conflicts of laws. Any action brought by either party arising out of or relating to the Contract must be brought in the Seller’s state or federal courts located in Georgia as applicable to the Seller’s specific location]. Buyer waives any objection to jurisdiction or venue in respect of said Courts and to any service of process issued under their authority. The Contract shall neither be governed by nor construed in accordance with the United Nations Convention on International Contracts for the Sales of Goods.

23. Export controls

Buyer acknowledges that all shipments by Seller are or may be subject to the Export Administration Regulations (EAR) or International Traffic and Arms Regulations (ITAR), other restrictions and limitations imposed by United States export controls, trade regulations and/or trade sanctions. Buyer must always comply with such sanctions, controls and regulations and will cause compliance with such sanctions, controls and regulations in its use and disposition of the Products. With respect to each Product shipment pursuant to these Terms and conditions, Buyer will obtain and supply to Seller in writing all information required by Seller to obtain any U.S. export license, permit, approval or documentation applicable to such shipment. Notwithstanding any contrary provision in these Terms and conditions, Seller will have no obligation to make any shipment to Buyer until it has received all such information and has obtained the applicable licenses, permits, approvals or documentation for shipment, if any.

24. Government Contracts

If the Products to be furnished under the Contract are to be used in the performance of a U.S. government Contract or subcontract, the government Contract number and a statement to that effect shall appear on Buyer’s purchase order. If Buyer’s purchase order includes all said information and if said order is accepted in writing by supplier, then those clauses of the applicable government procurement regulations which are mandatory, required by federal statute or regulation to be included in this Contract, shall be incorporated herein by reference. In all other events, said clauses shall not be incorporated herein by reference.