Terms and Conditions (10/2015)

Terms and Conditions (10/2015)
(Rev. 10/2015)
1. Definitions. The term “Seller” means Alcoa Inc., acting through its Alcoa Primary Metals
division in Knoxville Tennessee, subject to the provisions of Section 11 below. The term
“Buyer” means the individual, corporation or other legal entity that has submitted an order to
Seller. The term “Order” means Buyer’s expressed request, whether oral or written, to
purchase Goods from Seller. The term “Goods” means all of the products, materials and
related services that Buyer desires to purchase from Seller.
2. Order Acceptance. Buyer’s Order is subject to acceptance by Seller, which acceptance is
made expressly contingent upon Buyer’s agreement to Seller’s terms and conditions.
Acceptance of this Order is subject to all of the terms set forth herein and on the face of
Seller’s sales order acknowledgment form (“Form”), which terms shall constitute the sole
terms and conditions of this Order. Buyer’s assent to all such terms and conditions shall be
conclusively presumed (A) when Buyer receives this document and the Form, electronically
or otherwise, and makes no written objection within ten (10) days of such receipt; or (B)
when Buyer accepts all or any part of the Goods reflected by the Order. Seller objects to any
terms or conditions that differ from or are additional to those stated herein or on the Form.
This Order, can be modified only by a writing signed by Seller.
3. Change of Price. The prices and charges stated on the face of the Form shall be adjusted to
and the Goods and other items covered by this Order shall be invoiced at the prices and
charges fixed by Seller at the time of and for each shipment under this Order, provided that
such prices and charges shall not exceed the prices and charges appearing on Seller’s
applicable price schedule, if any, in effect at the time of each shipment.
4. Payment Terms. Payment shall be made in US Dollars by electronic funds transfer (ACH or
wire transfer) and must be received by Seller in full, without set-off or other deduction, not
later than the due date. Payment terms shall be as set forth on the face of the Form and shall
be measured from the Bill of Lading date. If the payment due date falls on a day which is a
Saturday, Sunday or legal holiday in Pittsburgh, Pennsylvania, then payment shall be due on
the last business day immediately prior to such Saturday, Sunday or legal holiday. Failure by
Buyer to make full payment by the due date shall constitute a default. In such case, and in
addition to any other rights available to Seller at law or in equity, Seller will be entitled to
assess interest charges upon Buyer for any overdue amounts (as well as on any judgment for
the same) All Orders are subject to credit approval by Seller. Whenever reasonable grounds
for insecurity arise with respect to due payment from Buyer or with respect to Buyer’s
financial condition generally, Seller may demand different terms of payment from those
specified above, and may demand additional assurance of Buyer’s due payment. Any such
demand may be oral or in writing and Seller may, upon the making of such demand, stop
production and suspend shipments hereunder. 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, Seller may, at its option, treat such failure or refusal as a
repudiation of the portion of this Order which has not been fully performed or 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. Taxes. The prices and charges stated on the face of the Form do not include state or federal
excise, sales or use, or other taxes (if any) now in effect or hereafter levied by reason of this
transaction. All such taxes shall be for the Buyer’s account.
6. Delays. Seller shall use reasonable efforts to fill this Order in accordance with the estimated
shipping date, but shall not be responsible for any delays in filling this Order nor liable for
any losses or damages resulting from such delays, and this Order shall not be subject to
cancellation for such delays.
7. Force Majeure. Seller will not be liable for failure in the performance of its obligations
hereunder where such performance has been delayed prevented or rendered commercially
impractical due to accidents, differences with workmen, strikes, shortage of labor, inability to
obtain materials, fuel or power from normal sources, fires, floods or other acts of God, acts or
omissions of Buyer, priorities required, requested or granted for the benefit of any Federal or
state government, restrictions imposed by Federal or any state legislation or regulations
thereunder, or any cause whether similar or dissimilar to those enumerated, beyond the
reasonable control of Seller.
8. Inspection, Acceptance or Rejection. Inspection, acceptance or rightful rejection of Goods
shall be made promptly by Buyer within ten (10) days after Buyer’s receipt of Goods. Buyer
shall promptly notify Seller in writing (via facsimile, e-mail or US mail) if Buyer believes
that any Goods delivered hereunder are properly rejectable and hold such Goods pending
Seller’s inspection. The parties agree that (A) Seller’s analyses shall govern (If Buyer
requests, Seller shall furnish Buyer with a certificate of analysis for each shipment under this
Order.) and (B) Seller’s tonnage measurement per railcar or truck for transporting the metal
selected at Seller’s sole option will govern.
9. Equipment. (A) Any equipment (including jigs, dies and tools) which Seller constructs or
acquires for use exclusively in the production of Goods for Buyer shall be and remain Seller’s
property and in Seller’s possession and control, and any charges by Seller therefore shall be
for the use of such equipment only. All such equipment will be used exclusively for the
manufacture of Goods for Buyer. When for two (2) consecutive years no Orders acceptable to
Seller are received from Buyer for Goods to be made with any such equipment, Seller may
make such use or disposition thereof as Seller desires without liability or obligation to Buyer.
(B) Any materials or equipment owned or furnished by Buyer to Seller will be carefully
handled and stored by Seller while in Seller’s possession. When for two (2) consecutive
years, no Orders acceptable to Seller are received from Buyer for Goods to be made from any
such equipment or materials, Seller may by written notice to Buyer, request Buyer to make
disposition thereof at Buyer’s expense. If Buyer fails to comply with such notice, Seller may
make such use or disposition of said materials or equipment as it desires without liability or
obligation to Buyer.
10. Warranty. Seller warrants to Buyer that the Goods at the time of shipment to Buyer
hereunder, (A) will conform to the specifications on the face of the Form; (B) that Primary
aluminum products described by recognized Aluminum Association designation will comply
with ingot standards promulgated by the Aluminum Association; (C) that it will convey good
title thereto and that such Goods will be delivered free from any lawful security interest or
other lien or encumbrance unknown to Buyer; and (D) that such Goods will be free from
defects in material and workmanship. All warranty claims must be made in writing by Buyer
to Seller within ninety (90) days following shipment of the Goods to which such warranty
claim relates.
11. Patents. Seller agrees to indemnify Buyer against all court assessed damages (excluding
consequential damages) and costs resulting from infringement of any United States Letters
Patent covering (A) standard commercial compositions offered for sale generally by Seller at
the time of acceptance by it of this Order; or (B) standard commercial forms, shapes or
constructions offered for sale generally by Seller at the time of acceptance by it of this Order,
to the extent that such compositions, forms, shapes or constructions are supplied hereunder.
Buyer agrees, for the Goods delivered under this Order, to indemnify Seller against all court
assessed damages (excluding consequential damages) and costs resulting from infringement
of any United States Letters Patent to the extent that such infringement arises from designs,
specifications or instructions furnished or explicitly or implicitly required by Buyer and
different from the matters embraced by (A) and (B) of the preceding sentence. 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 clause.
Neither party shall be entitled to
indemnification under this clause as to any claim of infringement concerning which it does
not give the other party prompt notice in writing upon learning thereof and full opportunity,
at the expense of such other party, to defend and dispose of such claim of infringement. The
sale of Goods covered by this Order shall not grant to Buyer any right or license of any kind
under any patent owned or controlled by Seller or under which Seller is licensed, but the
foregoing shall not be understood to limit in any way Buyer’s right to use and sell such
Goods, in the event that such Goods as sold hereunder are covered by any such patent.
12. Subsidiaries and Affiliates. Seller may be acting hereunder on its own behalf or as agent for
any one or more persons subsidiary to or affiliated with Seller. This Order may be performed
and all rights hereunder against Buyer may be enforced by (i) Seller; or (ii) any one or more
persons subsidiary to or affiliated with Seller; or (iii) a third party designated by Seller; (iv) in
part by Seller and in part by one or more of said subsidiaries, affiliated persons or third
13. Customer Part, Specification or Drawing Number. Any such number which appears enclosed
by parenthesis on the face of the Form will be produced in accordance with specifications
thereof as modified with Buyer’s approval.
14. Returnable Equipment. Any equipment specified on the face of the Form as returnable, or for
which a charge is made or for which a deposit is required, shall be returned in accordance
with Seller’s instructions with respect thereto.
15. Indemnity. Buyer shall release, hold harmless, indemnify and defend Seller, its present and
future officers, directors, officials, employees, agents, subsidiaries, affiliates, successors and
assigns from any liability (including without limitation liability for negligence or strict
liability) claims, losses, suits, demands, penalties, fines, forfeitures, damages and costs
caused by, arising out of or relating to the Goods supplied hereunder, the design of Goods
supplied hereunder or the design of the packages or containers in which Goods are shipped, if
such Goods’ packages or containers are made in compliance with Buyer’s designs or
specifications, or any act or omission of Buyer or its successors, assigns, agents,
representatives or employees.
16. Termination of Order. Buyer may not terminate this Order without the written consent of
Seller. If Seller consents to such termination, reasonable termination charges computed by
Seller shall be assessed in connection with such termination (which may include but shall not
be limited to any change in the LME price between the date on which the Order was priced
and the date of desired termination).
17. Limitation of Liability. Seller’s liability and Buyer’s exclusive remedy for any tender of
nonconforming or defective Goods or breach of warranty, is expressly limited to Seller’s
choice of (A) the repair of nonconforming or defective Goods; (B) the replacement of
nonconforming or defective Goods with conforming Goods at the FOB point shown on the
face of the Form, and (C) the repayment of that portion of the purchase price represented by
nonconforming or defective Goods. Such repair, replacement or repayment will be made
only upon return of the nonconforming or defective Goods, which may be returned at Seller’s
cost only after inspection by Seller and receipt by Buyer of definite shipping instructions
from Seller. Seller shall not be liable for any incidental, consequential, indirect, special,
exemplary, contingent, or punitive damages for (A) any breach of contract or warranty,
whether based on theories of breach of warranty, breach of contract, tort, negligence, strict
liability or otherwise; (B) the tender of defective or nonconforming Goods; or (C) breach of
any other provision of this agreement; or (D) any claim of any kind arising out of or relating
to any Order or Seller’s performance in connection therewith. In any event, Seller’s liability
to Buyer shall not exceed the purchase price of the Goods on which such liability is based.
Buyer assumes all other liability for any loss, damage or injury to persons or property arising
out of, connected with or resulting from the use of the Goods, either alone or in combination
with other products.
18. Delivery and Transportation. Delivery and transportation provisions applicable to this Order
shall be those stated on the face of the Form. (A) Where the shipping terms on the face of the
Form state that the Goods are sold FOB destination, Seller will deliver and bear the cost of
transportation of such Goods to such destination in accordance with the provisions of this
paragraph. The method and agency of transportation and the routing will be designated by
Seller. Excess packing, shipping and transportation charges that result 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 Seller shall be for Buyer’s account. In the case of Buyer pickup, Buyer’s truck is the destination, and unless Seller otherwise agrees in writing, Seller will
not deliver or bear any cost of shipment or transportation, or make any allowance with
respect thereto, beyond loading onto Buyer’s truck (whether owned by, leased to or otherwise
under contract to Buyer). Buyer shall bear all risk of loss or damage upon Seller’s loading of
such Goods onto Buyer’s truck. (B) Where the shipping terms on the face of the Form state
that the Goods are sold FOB shipping point Seller’s plant, the cost of transportation and risk
of loss or damage thereof shall be borne by Buyer.
19. Shipments; Shipping Weights. (A) Seller 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 the face of the Form. (B) Absent manifest
error, Seller’s shipping weights will govern for each shipment or partial shipment under the
face of the Form. Should Buyer dispute the shipping weight of any shipment or partial
shipment under the face of the Form, Buyer will promptly notify Seller in writing of the
reasons for such dispute and provide to Seller all necessary documents to substantiate the
20. Export Licensing. (A) Buyer and Seller shall comply with all national and international
export and control regulations. Equipment, technology and technical data shall not be
exported, re-sold, diverted, re-exported or disposed of in other than the country of ultimate
destination (currently approved by the United States Government), without the prior approval
of the United States Department of State or Commerce or other Agency of the United States
Government, whichever is appropriate. (B) Seller shall assume no liability in the event that
an export license is not approved or later withdrawn by the United States Government or
other applicable Government. (C) Where Buyer requests a routed transaction (meaning it
will along with its U.S freight forwarder accept responsibility as U.S Exporter of Record to
attain such applicable Government approvals) it shall supply all required documentation to
the Seller including the required routed transaction letters from both Buyer and its designated
U.S. designated Forwarder/agent. Further, Buyer shall comply with all laws and
regulations applicable to the use, sale, distribution, transfer, export, or re-export, directly or
indirectly, of any Goods, including the laws of the United States (“U.S.”) and any other
country in which Buyer or Seller undertakes any of the foregoing. Buyer will not transfer,
export, or re-export, directly or indirectly, any Goods to U.S. embargoed countries, or any
nationals thereof, or to any other country subject to restriction under applicable laws and
regulations, (including but not limited to those indicated by the U.S. Treasury Department
and Buyer hereby warrants that it is not located in, under the control of, or a national or
resident of any such country). Buyer will not transfer, export, or re-export, directly or
indirectly any Goods to any party listed by any applicable government or law as prohibited
from receiving such products, and Buyer hereby represents that it is not on, or under control
of any person or entity which is on any such list.
21. Standard Quantity Tolerances. Unless another tolerance is stated on the face of the Form, the
quantity tolerance applicable to each item of Goods specified on the Order shall be +/- 3%.
22. Arbitration. All disputes, controversies or claims arising in connection with the present
contract, including a dispute regarding its validity, termination, performance or breach
thereof, shall be finally settled by arbitration administered by the International Court of
Arbitration of the International Chamber of Commerce (the “ICC”) in accordance with the
ICC Rules of Arbitration in effect at the time of the arbitration. The arbitration shall be
conducted by three arbitrators appointed in accordance with said rules. The place of
arbitration shall be Pittsburgh, Pennsylvania, USA and the proceedings shall be conducted in
the English language. The award rendered by the arbitrator(s) shall be final and binding on
the parties and judgment on the award may be entered in any court of competent jurisdiction.
23. Governing Law. The laws governing the present contract and any dispute arising from or in
connection with the contract shall be the laws of state of Pennsylvania, and federal
intellectual property laws, without regard for choice of law. Notwithstanding anything to the
contrary herein, the arbitration provisions set forth herein, and any arbitration conducted
thereunder, shall be governed exclusively by the Federal Arbitration Act, Title 9 United
States Code, to the exclusion of any state or municipal law of arbitration.
24. Buyer’s Warranty. Notwithstanding any other provision contained herein or any other
obligation of Buyer hereunder, Buyer, upon acceptance of Goods that are the subject of this
Order, warrants that Buyer, its successors, assigns, agents and employees are industrial users
of such Goods and possess the knowledge and expertise to use the same in accordance with
(i) accepted industry standards (ii) all applicable laws, (iii) prudent safety practices and (iv)
operating manuals or other instructions provided by Seller, if any.
25. Confidentiality. Unless otherwise agreed in writing by Seller, Buyer will not disclose the
pricing or other terms of this Order to any third party.
26. Electronic Commerce. At Seller’s request, Seller and Buyer will facilitate business
transactions by electronically transmitting data. Any data digitally signed pursuant to this
section and electronically transmitted will be as legally sufficient as a written, signed, paper
document exchanged between the parties, notwithstanding any legal requirement that the data
be in writing or signed. Each authorized representative of a party will adopt a unique,
verifiable digital identification consisting of symbols or codes to be transmitted with each
transmission. Use of the digital identification will be deemed for all purposes to constitute a
“signature” and will have the same effect as a signature on a written document.
27. Price Indices. If any index used to determine the price of Goods under this Order ceases to be
available or, in the reasonable discretion of Seller, ceases to represent an accurate assessment
of the current market price for such Goods, the parties agree to promptly negotiate on a good
faith basis a mutually satisfactory alternate price or reference.
28. Successors/Assignment. These terms and conditions shall be binding upon and inure to the
benefit of Buyer and Seller and their respective successors and permitted assigns. Except as
set forth below, neither party may sell, assign, transfer, convey or delegate any of its rights or
obligations under this Order without the prior written consent of the other. Alcoa Inc.
announced on September 28, 2015 that its board of directors approved a plan to separate into
two independent, publicly-traded companies (the “Separation”): (1) a company that will
consist of the five business units that today make up Global Primary Products (“Upstream
Company”), and (2) a company that will include Global Rolled Products, Engineered
Products and Solutions, and Transportation and Construction Solutions (“Value-Add
Company”). Buyer hereby consents, without any further action on the part of Buyer being
required, to the transfer, novation and/or assignment (each a “Substitution”) of Seller’s rights
and obligations under this Order to Upstream Company or its affiliates (the “Transferee”) in
connection with or in anticipation of the Separation, and, notwithstanding anything to the
contrary that may be contained herein, such Substitution shall not violate, constitute a breach
or default of or any loss of any rights or benefit under, or result in any right of termination,
payment or cancellation of, this Order and no further consent or notice shall be required for
such Substitution. Following such Substitution, the Transferee shall be the beneficiary of all
rights and assume all obligations of Seller under this Order, and Seller shall have no further
obligations under this Order. Notwithstanding anything to the contrary that may be contained
in this Order, no consent or notice shall be required for the direct or indirect transfer of all or
a majority of the equity interest of Seller to Upstream Company or any of its subsidiaries in
connection with or anticipation of the Separation, and no such transfer shall violate, constitute
a breach or default of or any loss of any rights or benefit under, or result in any right of
termination, payment or cancellation of, this Order.
28. Miscellaneous. (a) Headings used herein are for convenience only and shall not be used for
interpretive purpose. (b) A party’s failure to act with respect to another party’s breach of any
provision contained herein does not constitute a waiver. (c) If any provision herein is held to
be invalid or unenforceable, such provision shall be narrowly construed, if possible, or
otherwise deemed ineffective and the remaining provisions shall not be affected. (d) These
terms and conditions will survive the fulfillment of this Order. (e) With respect to any Orders
for shipment outside the U.S., the United Nations Convention on Contracts for the
International Sale of Goods will not apply.
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