1. TERMS & CONDITIONS OF SALE. These Standard Terms and Conditions of Sale (“Terms”) apply to (a) the goods that are the subject of a sale from Alanic International Corporation, Inc. to Buyer (“Products”), (b) the services sold by Alanic International Corporation to Buyer are referred to as the “Services,” and (c) items of tangible property on which Alanic International Corporation performs Services or that result from Services are referred to as the “Service Items.” Any irreconcilable conflict between these Terms and any terms from an applicable Alanic International Corporation quotation, order acknowledgement, these terms and conditions prevail. “Buyer” is any party that agrees to purchase Products or Services from Alanic International Corporation.
2. ACCEPTANCE. Alanic International Corporation’s acceptance of any written offer by Buyer, in the form of a purchase order or otherwisse, to purchase Products and Services is expressly conditioned upon Buyer’s assent, acceptance and agreement to the Terms, evidenced by (a) no written objection sent to Alanic International Corporation within ten (10) days after receipt of the order acknowledgement, (b) instruction to Alanic International Corporation to begin work or shipment of Products or Services, (c) acceptance of or payment for all or any part of the Products or Services, (d) taking any other action evidencing Buyer’s acceptance of the benefits of the Terms (collectively, “Buyer’s Acceptance”). Any offer received from Buyer to Alanic International Corporation shall be conclusively construed to be written acceptance of these Terms. No modification, alteration, addition or change to these Terms shall be valid or enforceable unless expressly agreed to in writing by an authorized officer of Alanic International Corporation. These Terms supersede all previous communications, representations or agreements either oral or written between Buyer and Alanic International Corporation with respect to the Products or Services. Failure of Alanic International Corporation to object to any terms or conditions which may be contained in any document or form of Buyer shall not be construed as a waiver of these conditions, nor as an acceptance of any such terms and conditions. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and that is signed by an authorized representative of Alanic International Corporation and Buyer.
3. DELIVERY. Delivery dates are approximate. The failure to meet an indicated delivery date will not constitute a breach of these Terms. In no event shall Alanic International Corporation be liable for any claims for labor or for any special, indirect, incidental, or consequential damages including, but not limited to, demurrage charges, cost of shipment, downtime, lost profits (whether direct or indirect), lost sales, or any other damages resulting from delay in delivery. If Alanic International Corporation’s production or delivery is delayed, Alanic International Corporation may allocate production and delivery among its customers in a manner it deems reasonable. Alanic International Corporation reserves the right to change or re-designate any product source listed in these Terms. ACCEPTANCE OF THE PRODUCTS OR SERVICE ITEMS BY BUYER UPON DELIVERY SHALL CONSTITUTE A WAIVER BY BUYER OF ANY CLAIM FOR DAMAGES ON ACCOUNT OF DELAY IN DELIVERY OR PERFORMANCE.
4. SHIPMENT AND RISK OF LOSS. All deliveries are F.O.B. the Alanic International Corporation’s facility (or the facility of any subcontractor of Alanic International Corporation contracted to complete said order) or freight prepaid. Unless otherwise agreed in writing, Alanic International Corporation may, in its sole discretion, select the shipping method, the carrier and the applicable freight charges. If Buyer desires to pick up the Products or Service Items at Alanic International Corporation’s facility Buyer must contact Alanic International Corporation to arrange a mutually convenient time for pick up. Buyer shall indemnify and hold harmless Alanic International Corporation from and against any claims, damages or liabilities suffered by Alanic International Corporation resulting from any acts or omissions of the carrier. Title to the Products and risk of loss to the Products and Service Items shall pass to the Buyer at the point of shipment from the Alanic International Corporation’s facility (or the facility of any involved subcontractor to Alanic International Corporation), whether freight prepaid or F.O.B., regardless of which party selects the carrier and arranges the freight charges or particulars of shipment. Risk of loss for damage or delay in transit shall be borne by Buyer. Buyer shall file and pursue any claims directly with the carrier related to loss, damage or delay in transit, and Buyer shall not assert such claims against Alanic International Corporation or deduct from amounts owing to Alanic International Corporation.
5. RELEASE OF PRODUCTS AND SERVICE ITEMS FOR SHIPMENT. Buyer hereby releases the Products or Service Items for shipment within one (1) day after Alanic International Corporation acknowledges order to Buyer. After such 1-day period, Buyer will pay a holding charge determined in good faith by Alanic International Corporation and/or Alanic International Corporation may ship the Products or Service Items to Buyer without further notification. Buyer agrees to accept delivery of all shipped Products or Service Items and to pay the applicable price. With respect to any order of a single item of a truckload or less, Buyer must release the entire order for shipment at one time or pay additional LTL freight charges required by Alanic International Corporation.
6. DELAYS AND CANCELLATIONS BY BUYER. Buyer is not entitled, without Alanic International Corporation’s prior written consent, which may be withheld or conditioned in Alanic International Corporation’s sole discretion, to cancel or delay a delivery of the Products or Services for all or any part of an order within any Firm Order Period. Alanic International Corporation may treat as a cancellation any proposed delay greater than sixty (60) days. If Alanic International Corporation consents to the cancellation or delay, Buyer shall pay a cancellation or delay charge in an amount determined in Alanic International Corporation’s sole discretion to reflect all applicable Delay/Cancellation Costs from the original request date until the time of delivery or performance. In the case of cancellation, the charge may also include, at Alanic International Corporation’ sole discretion, a reasonable and equitable profit for Alanic International Corporation. If Alanic International Corporation’s work on an order requires material from Buyer or a third party selected by Buyer, and Alanic International Corporation does not timely receive material that strictly conforms to Alanic International Corporation’ requirements, Alanic International Corporation may delay performance of or cancel the order without liability, and Buyer shall compensate Alanic International Corporation for all Delay/Cancellation Costs, including for costs incurred and time expended working on non-conforming material. “Delay/Cancellation Costs” include all labor, materials, overhead, general and administrative costs, restocking charges, surcharges levied on material by outside suppliers, sub-vendor cancellation charges, excess inventory charges, value of storage space, inventory tax charges, banking and finance charges, scrapping and disposal fees, and other harm, costs and charges incurred directly or indirectly by Alanic International Corporation in connection with a delay or cancellation of an order for the Products or Services. The “Firm Order Period” is determined according to, as applicable, the quotation, order acknowledgement or separate written and signed agreement. If there is no quotation, order acknowledgement or separate written and signed agreement, or if none of those items specifies the Firm Order Period, the Firm Order Period will be determined according to Alanic International Corporation’s then current cancellation and order management policy. If a Firm Order Period cannot be determined in any of the preceding methods, the entire order will be considered to be within the Firm Order Period.
7. SPECIFICATIONS. The material specifications, quality requirements, or any other aspect of the Products and the Service Items or their manufacture (the “Product Specifications”) is governed by the terms of any applicable Alanic International Corporation’ quotation, order acknowledgement, or separate written and signed agreement. If any of the Product Specifications set forth in a Alanic International Corporation’s quotation, materially differs from the Product Specifications in the applicable order acknowledgement, or separate written and signed agreement, Alanic International Corporation may, in its sole discretion, require that Buyer provide a written acknowledgment and acceptance of the Product Specifications in either the Alanic International Corporation’s quotation, order acknowledgement, or separate written and signed agreement prior to the manufacture, repair or delivery of the Products or Service Items or performance of the Services. Buyer is not entitled, without Alanic International Corporation’s prior written consent, which may be granted or withheld in Alanic International Corporation’s sole discretion, to make any changes to Product Specifications in Alanic International Corporation’s quotation, order acknowledgement, or separate written and signed agreement. If Alanic International Corporation consents to the change, Alanic International Corporation may condition its consent on Buyer’s agreement to price adjustments and other compensating payments satisfactory to Alanic International Corporation. In addition to all other remedies available to it under applicable law, Alanic International Corporation may refuse to comply with any change to which Alanic International Corporation has not given its prior written consent.
8. PURCHASE PRICE. The purchase price of the Products or Services shall be as stated in the applicable Alanic International Corporation quotation, order acknowledgement, or separate written agreement by an authorized representative of Alanic International Corporation and paid in United States Dollars. Unless agreed to by Alanic International Corporation in writing, the purchase price does not include shipment costs or any other costs specifically excluded in these Terms. If the Products or Service Items are shipped freight prepaid, the charge for freight shall be added to the invoice(s). Prices are based on and assume Buyer’s compliance with all of these Terms, and a promise by Buyer to purchase a particular mix and quantity of Products and Service Items, or a certain percentage of Buyer’s requirements for the Products or Service Items. Alanic International Corporation may adjust prices, in its sole discretion, if the circumstances do not coincide with the forgoing assumptions.
9. PAYMENT TERMS. Payment terms are 50% Deposit to start order, and 50% Balance before delivery with no discounts or retention of any kind or sort allowed.
10. SHIPPING WEIGHT. All weights offered, shown or calculated with respect to the Products or Service Items, other than the actual shipping weights, are approximate estimated weights only. If sale terms are on a weight basis, Alanic International Corporation’s actual shipping weights are to govern the performance of these Terms. If such an approximate weight is offered, shown or calculated, Buyer shall nevertheless accept Alanic International Corporation’s shipping weights as the basis of full and complete delivery, and make payment therefor.
11. FAILURE OF PAYMENT. If Buyer fails to make payment in full or in part when due or refuses to pay any applicable price increases or surcharges, Alanic International Corporation shall have the right to: (a) immediately suspend performance and cancel the unfinished portion of any outstanding orders, (b) declare all unpaid amounts for the Products or Service Items delivered immediately due and payable, and (c) withhold further deliveries. If Alanic International Corporation elects to proceed with an order after the suspension of performance, Alanic International Corporation shall have an extension of time for performance as is necessitated by the suspension. Alanic International Corporation shall have the right to enforce payment of the full purchase price, including any price increase or surcharge, for Products or Service Items already delivered or in process. Buyer shall reimburse Alanic International Corporation for all costs of collection, including reasonable attorney’s fees, incurred as a result of Buyer’s failure to make payments when due.
12. SETOFF. Alanic International Corporation shall have the right to credit toward the payment of any monies that may become due Buyer hereunder any amounts which may now or hereafter be owed to Alanic International Corporation or any of its subsidiaries or affiliates. Buyer shall pay Alanic International Corporation’s invoices without discount, setoff, retention or reduction for any reason, including asserted warranty claims or other claims of non-performance by Alanic International Corporation.
13. NON-CONFORMING PRODUCTS AND SERVICE ITEMS. No claim for damages for non-conforming Products or Service Items will be allowed unless Buyer provides Alanic International Corporation with written notice of the claim within fifteen (15) days of the date the Products or Service Items were delivered to Buyer. To assert such a claim, Buyer must (a) at Alanic International Corporation’s request, return to Alanic International Corporation all of the non-conforming Products or Service Items, and (b) provide reasonable evidence to support the claim, including, if requested by Alanic International Corporation within 10 days after request by Alanic International Corporation, results of diagnostic tests, evaluations and investigations performed by Buyer or Buyer’s customer. Products or Service Items for which damages are claimed shall not be returned, repaired, or discarded without Alanic International Corporation’s prior written consent. If requested by Alanic International Corporation, the non-conforming Products or Service Items must be returned to Alanic International Corporation at Buyer’s expense within ten (10) days of Alanic International Corporation’s request. No claims, rejections or returns for non-conforming Products or Service Items will be permitted unless Buyer cooperates in full with Alanic International Corporations’ technical personnel to determine the cause of the non-conformance.
14. SHORTAGE OR DAMAGED OF PRODUCTS OR SERVICE ITEMS. Claims by Buyer with respect to shortage of invoiced Products or Service Items, or for damaged Products or Service Items, must be made to Alanic International Corporation in writing no later than ten (10) days from the date the Products or Service Items were delivered to Buyer. All claims must be made only for substantial cause, must be in writing, and must specify the reason(s) for the claim. THE FAILURE TO NOTIFY Alanic International Corporation OF ANY CLAIM WITHIN THE TIME PERIOD SPECIFIED BY THIS SECTION SHALL CONSTITUTE A WAIVER OF AND BAR TO SUCH CLAIM. Alanic International Corporation SHALL INCUR NO LIABILITY FOR SHORTAGE OR DAMAGE ALLEGED TO HAVE OCCURRED OR EXISTED AT OR PRIOR TO DELIVERY TO THE CARRIER UNLESS BUYER SHALL HAVE ENTERED FULL DETAILS THEREOF ON CARRIER’S DELIVERY RECEIPT WHICH MUST BE SIGNED BY THE CARRIER’S AGENT. Alanic International Corporation MUST BE GIVEN AN OPPORTUNITY TO INVESTIGATE THE CLAIM BEFORE BUYER DISPOSES OF THE PRODUCTS OR SERVICE ITEMS. ANY DAMAGED PRODUCTS OR SERVICE ITEMS SHALL NOT BE RETURNED, REPAIRED OR DISCARDED WITHOUT Alanic International Corporation’s WRITTEN PERMISSION.
15. LIMITATION OF LIABILITY. ALANIC INTERNATIONAL CORPORATION’S LIABILITY, WHETHER IN CONTRACT, IN TORT, UNDER WARRANTY, IN NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES, AND UNDER NO CIRCUMSTANCES SHALL ALANIC INTERNATIONAL CORPORATION BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, DEMURRAGE CHARGES, COSTS OF SHIPMENT, DOWNTIME, LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOST SALES, OR CLAIMS OF BUYER’S CUSTOMERS OR OTHER THIRD PARTIES FOR DAMAGES OR PENALTIES, WHETHER OR NOT BUYER IS LEGALLY OBLIGATED TO PAY THEM. ALANIC INTERNATIONAL CORPORATION’S LIABILITY HEREUNDER SHALL BE LIMITED TO EITHER: (a) THE OBLIGATION TO REPAIR OR REPLACE, AT ALANIC INTERNATIONAL CORPORATION’S SOLE DISCRETION, ONLY THOSE PORTIONS OF THE PRODUCTS OR SERVICE ITEMS PROVEN TO HAVE FAILED TO MEET IN MATERIAL RESPECT THE PRODUCT SPECIFICATIONS ON THE ALANIC INTERNATIONAL CORPORATION’S QUOTATION, ORDER ACKNOWLEDGEMENT, OR SEPARATE WRITTEN AND SIGNED AGREEMENT AT THE TIME OF SHIPMENT FROM ALANIC INTERNATIONAL CORPORATION’S FACILITY, OR (b) REPAYMENT OF OR CREDIT AGAINST THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES. ALANIC INTERNATIONAL CORPORATION AND BUYER EXPRESSLY AGREE TO THIS ALLOCATION OF RISK AND THE PRICE STATED FOR THE PRODUCTS OR SERVICES IS CONSIDERATION FOR THE LIMITATION ON ALANIC INTERNATIONAL CORPORATION’S LIABILITY. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXCLUSIVE REMEDY DESCRIBED IN THIS SECTION FAILS ITS ESSENTIAL PURPOSE.
16. INDEMNIFICATION. Buyer agrees to indemnify, defend and hold harmless ALANIC INTERNATIONAL CORPORATION, its directors, officers, employees, agents, successors and assigns from and against any and all damages, losses, expenses, costs (including without limitation reasonable attorney’s and accountant’s fees), claims, suits, actions, judgments or other liability asserted against or incurred by ALANIC INTERNATIONAL CORPORATION’S arising out of (a) Buyer’s breach of its obligations hereunder, (b) Buyer’s negligence or misconduct, or (c) Buyer’s misuse or misapplication of the Products or Service Items or damage to the Products or Service Items caused by Buyer or its employees, agents or customers.
17. FORCE MAJEURE. ALANIC INTERNATIONAL CORPORATION shall not be responsible for cancellation or delay in delivery or performance resulting, in whole or in part, from causes beyond its reasonable control, including, but not limited to: acts of God; acts of Buyer; strikes or other labor disturbances regardless of whether or not ALANIC INTERNATIONAL CORPORATION is capable of settling such strike or disturbance; supplier or facility conditions; temporary or permanent supplier or facility closures; equipment failure; inability to obtain fuel, material, or parts; war; acts of terrorism; sabotage; riot; delays in transportation; repairs to equipment; natural disasters; epidemics; floods; fires; action of governmental authorities (valid or invalid); delays due to internal or external problems on behalf of the contracted shipping agent or carrier , severe weather conditions; accidents; explosions; failure of or inability to obtain power, raw materials, suppliers, labor, equipment or transportation; a court or administrative injunction or order; or any other contingency the non-occurrence of which was a basic assumption on which these Terms were set forth.
18. ASSIGNMENT OR DELEGATION. Buyer shall not assign or delegate any or all of its rights or obligations under these Terms without the prior written consent of Alanic International Corportion , and any attempt to do so will be ineffective.
19. NO THIRD PARTY RIGHTS. These Terms are for the sole and exclusive benefit of the parties hereto and their permitted successors and assigns. Nothing expressed or referred to in these Terms will be construed to give any other person any legal or equitable right, remedy or claim under or with respect to these Terms.
20. INDEPENDENT PARTIES. Alanic International Corportion and Buyer are independent parties and nothing in these Terms shall make either party an agent, partner, joint venturer, or legal representative of the other.
21. HEADINGS. The section headings contained in these Terms are inserted for convenience only and shall not affect in any way the meaning or interpretation of these Terms.
22. PARTIAL INVALIDITY. If any term or provision of these Terms is determined to be illegal, unenforceable or invalid in whole or in part for any reason, such illegal, unenforceable or invalid provisions or part thereof shall be stricken from these Terms, and such provision shall not affect the legality, enforceability or validity of the remainder of these Terms. If any provision or part thereof of these Terms is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable and valid provision that is as similar in tenor to the stricken provision as is legally possible.
23. ATTORNEYS’ FEES. If either Party shall bring any action, suit, counterclaim, appeal, arbitration or mediation for any relief against the other, declaratory or otherwise, to enforce the terms hereof or to declare rights hereunder (collectively, an Action), the losing party shall pay to the prevailing party a reasonable sum for attorneys’ fees and costs (at the prevailing party’s attorneys’ then-prevailing rates as increased from time to time by the giving of advance written notice by such counsel to such party) incurred in bringing the prosecuting such Action and/or enforcing any judgment, order, ruling or award (collectively, a Decision) granted therein, all of which shall be deemed to have accrued on the commencement of such Action and shall be paid whether or not such Action is prosecuted to a Decision.
24. ENTIRE AGREEMENT. This agreement and any Order or Acknowledgment between the parties (with any inconsistencies to be governed by the Terms) contain the entire agreement between the parties, and all prior or contemporaneous written or oral communications, negotiations, acts, work performed or payments made prior to the execution of this agreement shall be deemed merged in, integrated and superseded by this agreement.
25. AMENDMENT. No amendment, modification or supplement to these Terms shall be binding on any of the parties unless it is in writing and signed by the parties in interest at the time of the modification.
26. TIME. Time is of the essence in respect to all provisions of this agreement in which a definite time for performance is specified.
27. FURTHER ASSURANCES. The parties shall at their own cost and expense execute and deliver such documents and instruments and shall take such other actions as may be reasonably required or appropriate to carry out the intent and purposes of these Terms.