UTP PIPE USA CORP
TERMS & CONDITIONS
653 STATE RT 52, WALDEN, NY 12586
Seller warrants that all materials conform to contract specifications. There are no warranties, express or implied, which extend beyond the description on the face of the contract.
Unless otherwise specified, seller may deliver, and buyer will accept up to ten (10%) percent than the contract quantity. Where material is sold on an actual weight basis, mill weights shall be conclusive.
3. Partial Shipments
Unless otherwise specified, Seller shall have the right to make partial shipments. Each partial shipment shall be deemed a separate sale and payment shall become due therefore, in accordance with the terms of payment
4. Import Duty & Taxes
If the contract calls for seller to pay duty, seller shall pay the amount of United States import duty at the rate stated in the Tariff Schedules of the United States in effect on the date of contract. If the duty is determined by value, it shall be based upon seller’s cost. If the total amount of duties (regular and special including, but not limited to, antidumping and countervailing duties), at any time, required to be paid is for any reason whatsoever greater (or less) than this amount, the difference shall be charged (or credited) to buyer. In the event that any new or increased U.S. Federal, State or local taxes however denominated are imposed upon the imported material after the sale of the contract, such new or increased taxes shall be for the account of and charged to the buyer.
5. Cost of Insurance & Transportation
If the contract provides that seller shall pay insurance and transportation costs, they shall be at the applicable rates in affect at the date of the contract. If for any reason the cost of insurance or increase shall be for the account of and charged to the buyer.
6. Delay in or Prevention of Shipment – Force Majeure
If for any reason beyond the control of the seller or of Seller’s supplier, shipment is not made within the time specified:
a. Seller shall not be liable therefore and,
b. Unless otherwise agreed, the time for shipment shall be extended for a period of ninety (90) days, and Buyer, if payment is to be made by Letter of Credit, shall extend such letter of credit for ninety (90) days. If shipment is not made within such extended ninety (90) day period, the contract shall be deemed to be cancelled by mutual consent and without liability to either party.
If, after the material has been shipped, its arrival at port of destination is delayed or prevented because, without fault of Seller, the vessel is delayed in arriving, berthing or unloading, or unloads at a different port, Seller shall not be liable therefore, the time shall be extended until the material is unloaded at the port of destination, within the terms of the contract shall be the place at which the material is unloaded by the vessel. Seller shall advise buyer of any such delay or deviation within a reasonable time and cooperate with the buyer, at the buyer’s expense to ship the material to the point of destination requested by the buyer.
a. Shortages - All claims for shortages in deliveries must be made promptly after the receipt of the material by the buyer. All claims for shortage must be supported by documentary evidence in the form of exceptions taken on the delivery receipt (however denominated) furnished by Buyer to the delivering carrier. Failure to take such exceptions at the time of delivery shall constitute an absolute bar to any claim.
b. Damaged and defective material – All claims of damage of a kind which might have occurred between mill and point of delivery are barred unless reported in writing by Buyer to Seller with full, promptly after the damage was or reasonably should have been discovered, and full facilities offered Seller and its insurer for inspection and investigation. All such claims must be supported by documentary evidence in the form exceptions taken on the delivery receipt (however denominated) furnished by the buyer to the delivering carrier. Failure to take such exceptions at the time of the delivery shall constitute an absolute bar to any claim. In case of a dispute as to whether material meets contract specifications, seller or buyer must may designate a mutually acceptable independent testing company and/or surveyor to make an examination and in such case said testing company’s and /or surveyor’s findings shall be conclusive and binding on both parties (the expense of which examination shall be borne by the seller with respect to each item found not to conform to specifications and by the buyer with respect to each item found to conform to specifications).
In the event that a timely and bonafide claim is made with respect to defective or damaged material seller shall give buyer an allowance therefore, seller shall not be otherwise liable for such defective or damaged material or it’s use or for consequential or special damages. Buyer’s obligation to accept and make payment on time for the balance of the material delivered or to be delivered under the contract shall not be affected thereby. All claims must be made by registered or certified mail and must state with particularity the defect or damage complained of. In no event may any claim be made more than twenty (20) days after material is available to Buyer.
9. Seller’s Remedies
In the event that buyer fails to perform its obligations, Seller, at its option, may cancel the contract and recover from Buyer it’s damages, including its expenses, mill cancellation fees and the difference between the contract price and the lesser of the seller’s cost or the market price at point of delivery, or seller may dispose of the material publicly or privately for Buyer’s account and apply the net proceeds, after deducting the expenses of disposition , against the purchase price. In case of any deficiency, the Buyer shall remain liable therefore. Seller’s expenses in either case shall include reasonable attorney’s fee and other cost of enforcing its rights.
10. Buyer’s Remedies
Except as otherwise provided herein, failure of the seller to deliver the contracted goods within 90 days of the promised delivery shall entitle buyer to cancel or renegotiate the contracted material. If a new delivery has already been accepted by the buyer in the interim, the 90 days delivery grace period mentioned above will apply from the newly agreed upon delivery date. In no case shall the seller be liable for any consequential or special damages.
11. Interest due on Late Payment
If payment is not made on time, seller in addition to its other legal rights, shall be entitled to interest at seller’s prevailing rate on the unpaid balance.
12. Suspension of future shipments – Change of Credit Terms
Buyer hereby represents that it is solvent and Buyer’s signing of any delivery receipt (however denominated) furnished by buyer to the delivering carrier shall constitute a further representation of solvency at the time of signing such receipt. Seller shall have the right to withhold shipment of any portion of the material covered by this contract or any other existing contract between the seller and buyer, in the event buyer fails to make payment when due under any contract between buyer and seller. Said action on the part of the seller shall not release buyer from its obligation to accept and pay for such remaining portion of material if and when shipped by seller.
If at any time there is a change in the financial condition or structure of buyer, arising from a change in business or market conditions or otherwise or arising from a merger, reorganization or other change in business form, or if Buyer becomes insolvent, make an assignment for the benefit of creditors, or a petition in bankruptcy with respect to Buyer is filed, or if any lien, arising from judicial process or otherwise, is placed upon any material asset of Buyer, then seller shall have the right to cancel the contract without liability on its part to change the credit terms of the contract , including but not limited to requiring the payment of cash in advance of delivery.
Any controversy arising under or in connection with the contract shall be submitted to arbitration in New York City in accordance with the rules than obtaining of the American Arbitration Association’s judgment on any award may be entered in any court having jurisdiction; the parties hereto submit to the jurisdiction of the Federal and State courts in New York City and notice if process in connection with the arbitral or judicial proceedings may be served upon the parties by registered or certified mail, with the same effect as if personally served.
The contract is to be governed by the State of New York
15. Statute of limitations
No claim or cause of action of any kind arising under the contract may be asserted in arbitration or in any other form more than one (1) year after the date on which such cause of action arises.
16. Clause Paramount
In the event of any conflict between the terms of the contract and the terms of buyer’s purchase order or letter of Credit, the terms of the contract shall prevail.
The contract constitutes the entire agreement between the parties and no modification shall be effective unless agreed to in writing.
Buyer and Seller agree that no representations have been made or relied upon, except as specifically stated in the contract.