Terms and condition of Sale

 

These Standard Terms and Conditions for Sale apply to all sales of goods by Nexgen Metals, Inc., a California Corporation (“Seller”). Seller’s acceptance of any purchase order by Buyer is expressly limited to these Terms and Conditions, and any proposal for additional or different terms, or any attempt by Buyer to vary in any degree any of these Terms and Conditions, is hereby objected to and rejected by Seller. All references herein to “Buyer” refer to the purchaser of goods from Seller.

These Terms and Conditions are posted on the Seller’s website and are incorporated by reference in the agreement of Seller and Buyer, except as otherwise expressly agreed in writing by Seller and Buyer.

  1. Terms and Conditions, Acceptance, Modification. These Terms and Conditions constitute the complete, exclusive and fully integrated statement of terms and conditions between the Buyer and Seller with regard to the matters contained herein. No terms or conditions (whether consistent or inconsistent) other than those stated herein, and no agreement or understanding, oral or written, in any way purporting to modify these Terms and Conditions shall be binding on Seller unless expressly agreed upon in writing by an authorized representative of Seller. In the event of a conflict between these Terms and Conditions and any purchase order (or other document expressly made a part of this contract) signed by both parties, the terms of the signed document shall prevail. Buyer’s placement of an order or release for, or taking delivery of, any product of Seller that is the subject of this contract shall constitute acceptance of the Seller’s offer under these Terms and Conditions, and Seller hereby objects to and rejects any and all additional or different terms proposed by Buyer, whether contained in Buyer’s purchase orders, shipping release forms, or related correspondence or any other documents (including emails). All proposals, quotes, purchase orders, negotiations and other communications, if any, are merged herein.
  2. In all cases Buyer must conduct a timely inspection of the goods upon receipt within a commercially reasonable time and manner not to exceed fifteen (15) days from such receipt. Buyer’s use of the goods or resale of the goods shall be deemed an acceptance of the goods involved as conforming to this contract unless Buyer provides Seller written notice of rejection or of a non-conformity respecting such goods prior to or concurrent with Buyer’s use thereof. Buyer’s inspection or failure to inspect shall not delay payment.
  3. Risk of Loss and Title. Risk of loss shall pass to the Buyer upon tender of delivery at the delivery point specified in the contract. Seller shall have the right to assess storage and handling charges for goods left in Seller’s (or its agent’s) possession after notification to Buyer that the goods are available to ship. Title to the goods shall pass to Buyer upon Seller’s receipt of full payment for the goods.
  4. In the event that Buyer fails to make payment in full within the time period set forth on the invoice or expressly agreed upon in writing by the parties, such failure will constitute a material breach of contract by Buyer permitting Seller to suspend shipment or delivery of goods under this contract or any other contract between Buyer and Seller. Buyer shall pay to Seller interest on any unpaid amount at a rate of 1.5% per month. Seller shall have, in addition, all other remedies permitted to Seller by law, equity, or this contract. If Seller takes legal action to collect any amount due from Buyer, Buyer shall pay all dispute resolution costs, including court costs plus reasonable legal fees incurred by Seller in bringing such legal action.
  5. Seller may suspend or terminate its performance hereunder without further liability or obligation to Buyer, or Seller may require payment in advance before making shipment, if Buyer’s credit declines or otherwise becomes unsatisfactory to Seller at any time. Nothing contained herein obligates Seller to extent credit or provide financing to Buyer, and any such extension of credit is in the sole discretion of Seller.
  6. Buyer shall be liable for and agrees to pay (a) property and similar taxes associated with possession or ownership of goods from the time Buyer takes delivery or should have taken delivery, and (b) excise, sales and similar taxes on transactions between Seller and Buyer.
  7. O.B. Terms. When goods are purchased F.O.B., Buyer must contract for, at its own expense, the transport of the goods from Seller’s premises, yard or other facilities and provide Seller with reasonable notice thereof, including the name of the carrier and the shipment date.
  8. Warranties and Disclaimer. There are no warranties of any kind provided by Seller. Buyer agrees to look solely to the manufacturer of the product for any damages resulting from product defects (including failure to meetspecifications). Seller hereby agrees to assign and convey to Buyer (to the fullest extent assignable), upon request of Buyer, all of Seller’s rights under the warranties of the vendor or manufacturer that supplied the goods sold by Seller to Buyer in connection herewith. Seller hereby expressly disclaims and excludes any and all warranties, including the implied warranties of merchantability and of fitness for a particular purpose and any warranty that might otherwise arise from the course of dealing between Buyer and Seller or from any usage of trade. Any technical advice provided by Seller with respect to the use of goods sold hereunder is for informational purposes only, and Seller makes no representation or warranty and assumes no obligation or liability for any such advice.
  9. Limitation of Remedies.
    1. In no event will Seller or its affiliates be liable for personal injury, property damage, loss of profit, delay, or any special, exemplary, indirect, incidental or consequential damages, whether arising from contract, tort, Seller’s negligence, strict liability, or any express or implied warranty, including the implied warranties of merchantability or fitness for a particular purpose.
    2. In no event will Seller or its affiliates be responsible for (i) pollution, contamination or radiation damage (including the cost of containment, cleanup and disposal); (ii) subsurface loss or damage, including loss or damage to any reservoir, formation, well, borehole or in-hole equipment, or impairment of any property right to water, oil, gas or other mineral substances; (iii) damage, loss, destruction, personal injury or death arising on the surface as a result of subsurface occurrence (including damage to or loss or destruction of any equipment, drilling rig, platform or other structure at or around the well site); and/or (iv) killing or regaining control of a wild well or re-drilling, reworking or fishing (including the cost thereof), even if the damage, loss, costs or expenses result from the sole or concurrent negligence of Seller or its affiliates (including subcontractors).
    3. Furthermore, in no event will Seller or its affiliates be responsible for retrieving damaged or defective goods from any well, delay or curtailment of operations, pollution or the cost of dismantling and removal of goods to be repaired or replaced resulting from defective material, faulty workmanship or otherwise.
    4. No claims of any nature whether based on contract or otherwise, may be brought against the Seller or any of its affiliates twenty-four (24) months after delivery of the goods to Buyer.
  10. Buyer’s Damages. In the event of a breach of this agreement by Seller, Buyer’s exclusive remedy and Seller’s limit of liability shall be for Buyer’s actual damages which shall in no event exceed the price of the particular goods with respect to which the damages occurred. Seller shall in no event be liable to Buyer (a) for any of Buyer’s damages; to the extent such damages arise from Buyer’s fault, negligence, willful misconduct or strict liability or (b) for Buyer’s lost profits or other incidental, punitive, special, indirect or consequential damages, regardless of whether Buyer is aware of the possibility of such damages.
  11. Neither Seller nor any of its affiliates shall have any liability whatsoever for any losses, claims, damages or expenses of Buyer or its affiliates, however caused, arising or occurring, whether through the negligence or other fault of Seller or any its affiliates or otherwise. Buyer shall release, protect, defend and indemnify and hold Seller and its affiliates harmless from and against any losses, claims, damages or expenses (including any reasonable attorneys’ fees) incurred by Seller or any of its affiliates by reason of:
    1. the failure of Buyer, or any its affiliates, to follow specifications, instructions, warnings or recommendations respecting the goods furnished by Seller or any of its affiliates;
    2. failure of Buyer or any of its affiliates to comply with all applicable legal requirements respecting the goods;
    3. misuse or misapplication of the goods by Buyer or any of its affiliates;
    4. any misrepresentation by Buyer or any of its affiliates; or
    5. any infringement or alleged infringement of any patent, trademark, copyright or trade secret by Buyer or any of its affiliates.
  12. Force Majeure. In the event either party’s performance hereunder is delayed or made impossible or commercially impracticable due to any cause beyond that party’s reasonable control (including fire, war, terrorism, strike or other differences with workers, shortage of product, delay in or lack of transportation, temporary or permanent plant shutdown, compliance with or other action taken to carry out the intent or purpose of any law, regulation, or other requirement of any governmental authority) (each, a “force majeure” event), that party shall have such additional time in which to perform this contract as may be reasonably necessary under the circumstances. However, the obligation of Buyer to pay for goods delivered is never suspended or delayed. In addition, if due to a force majeure event or any other cause, Seller is unable to procure sufficient goods to meet all demands from customers and internal uses, Seller shall have the right to allocate production among its customers in any manner which Seller may determine, acting reasonably.
  13. Cancellation by Buyer. Buyer may not cancel an order once placed with Seller without Seller’s confirmation in writing
  14. Seller’s Best Interest. In the event Buyer is a reseller of Seller’s products, Buyer must at all time: (a) represent Seller and its products in good faith and in a professional manner and (b) not engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to Seller or Seller’s products. In addition to any of its remedies under this contract, at law and in equity, Seller reserves the right to terminate this contract and any other contract between Buyer and Seller in the event of any material breach by Buyer of its duties under this paragraph.
  15. Governing Law. This contract, and all sales of goods by Seller to Buyer, is governed by the laws of California, U.S.A., exclusive of its conflict of laws rules that would require the application of any other laws. Seller and Buyer each irrevocably agree that any legal proceeding seeking the enforcement or interpretation of this contract must be brought in the state or federal courts located in Los Angeles, California, U.S.A. Each party hereby irrevocably submits itself to the jurisdiction of any such courts, and waives any objection it may now or hereafter have to the placing of venue in any such courts and any right to remove any such action or proceeding to another court.
  16. Attorneys’ Fees. Buyer agrees to pay for all reasonable attorneys’ fees and other legal expenses that are incurred by Seller due to a breach of this agreement by Buyer or in connection with the enforcement hereof.
  17. Buyer shall not assign its rights or obligations hereunder without the prior written consent of Seller. Any attempted assignment in contravention of the foregoing shall be void.
  18. No provision of this contract may be construed against the Seller as the drafting party. The term “including” means “including without limitation”. The term “days” means calendar days unless otherwise expressly stated.
  19. Third Party Rights. Other than rights of each party’s affiliates under this contract, no third parties will have any rights under this contract.
  20. Waiver by Seller of any breach of these provisions shall not be construed as a waiver of any other breach. Should any clause, sentence or part of this agreement be held invalid, such holding shall in no way affect the validity of the remainder, which shall remain in full force and effect.

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