AUDUBON METALS LLC (“Audubon”)

STANDARD TERMS AND CONDITIONS OF PURCHASE

  1. This purchase order, together with these terms and conditions, and any attachments, exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference, including the Terms and Conditions of Purchase appearing on Audubon’s website at www.audubonmetals.com (collectively, “Purchase Order”), constitutes the entire agreement for the purchase by Audubon of certain goods, materials, equipment and/or services (“Supplies”) from the supplier (“Supplier”) in each instance as identified in this Purchase Order.  Supplier’s acknowledgement or acceptance of this Purchase Order (whether electronically or otherwise), or Supplier’s commencement of performance hereunder, constitutes Supplier’s acceptance of these terms and conditions.  This Purchase Order does not constitute a firm offer and may be changed or revoked at any time prior to acceptance.
  2. Audubon’s submission of this Purchase Order is conditioned on Supplier’s agreement that any terms or conditions different from or in addition to those of this Purchase Order, whether communicated orally or contained in Supplier’s purchase order confirmation, acceptance, acknowledgment, invoice or otherwise, are expressly rejected by, and are not binding on, Audubon and shall not form a part of this Purchase Order (even if Supplier purports to condition its acceptance of this Purchase Order on Audubon’s agreement to such different or additional terms), unless agreed to in a separate writing signed by Audubon.  In the event of a conflict between the terms and conditions of this Purchase Order and those of any document of Supplier or third party, the terms and conditions of this Purchase Order shall control.
  3. It is a condition of this Purchase Order that Supplier, for itself and its subcontractors (if any), certifies that it and they have complied with all applicable federal, state, and local laws and all rules, regulations, and orders issued thereunder, in the manufacture, production, sale and transportation of the Supplies specified herein.
  4. Unless otherwise specified in writing by Audubon in this Purchase Order or elsewhere, the price stated is “FOB, delivered to Audubon’s facility, 3055 Ohio Drive, Henderson, Kentucky 42420” (Supplier’s expense).  Risk of loss for the Supplies does not pass to Audubon until Audubon has accepted the Supplies in accordance with Section 5.  Regardless of the point of delivery, all Supplies shall be received subject to Audubon’s inspection and acceptance.  Any excess freight or transportation charges incurred because Supplies are loaded in excess of applicable Federal, State and/or Local regulations shall be responsibility of Supplier.  Supplier shall pay all premium freight costs over normal freight costs if an expedited shipping method is required to meet agreed delivery dates.  Time is of the essence in Supplier’s performance of its obligations under this Purchase Order. 
  5. Audubon, in its sole discretion, may reject Supplies which are not in conformity with the descriptions or specifications set forth in this Purchase Order or which are not in conformity with Supplier’s representations and warranties herein.  Rejected Supplies remain Supplier’s property at Supplier’s risk, and will be returned to Supplier at Supplier’s expense.  In the event of nonconformity, non-delivery, partial delivery or late delivery, Audubon may, at its option, either (a) cancel this Purchase Order in whole or in part without liability to Supplier or (b) replace the Supplies in the open market after due notice to Supplier and within a reasonable time recover from Supplier the difference between (i) the market replacement price of the Supplies at the time of replacement and (ii) the agreed to price, whichever is greater.  No extension of time granted by Audubon shall constitute a waiver of this provision. 
  6. Audubon shall not be liable for any delay or failure of performance due to a request for delay by Supplier, strikes, acts of God, or other causes beyond Audubon’s control, provided that Audubon shall have given notice to Supplier of any such cause for delay or anticipated delay promptly following the commencement thereof.  In the event of a delay for any of the foregoing reasons, and if requested by Audubon, Supplier shall, immediately upon receipt of the notice from Audubon, hold up delivery until further notice from Audubon, regardless of whether such hold extends beyond any delivery date specified in this Purchase Order.  Upon receiving further notice from Audubon, Supplier shall promptly deliver the Supplies specified in this Purchase Order.
  7. Supplier agrees to indemnify and save harmless Audubon from and against all actions, charges, claims, damages, demands, expenses (including without limitation attorneys’ fees), liabilities, losses, suits or threatened suits, settlements and fines incurred or suffered by Audubon arising out of or relating to in whole or part (a) any breach by Supplier of the terms of this Purchase Order, including any breach of warranty or obligation of Seller contained herein, (b) a defect or failure in the Supplies or (c) Supplier’s operations or the acts or omissions of Supplier’s employees or those of its subcontractors (if any).  Supplier shall procure and maintain product liability insurance in sufficient amount to conform to this requirement.
  8. Notwithstanding any other warranty herein, Supplier warrants that the Supplies to be delivered under this agreement do not contain any “hazardous substance,” as that term is defined in the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. ¶ 9601(14), except those “hazardous substances” which are an integral part of the Supplies in which case Supplier shall notify Audubon prior to shipment of those Supplies containing such substances.  Supplier further warrants that the Supplies contain no radionuclides or radioactive materials.  Supplier shall indemnify and hold Audubon harmless from and against all actions, charges, claims, damages, demands, expenses (including without limitation attorneys’ fees), liabilities, losses, suits or threatened suits, settlements and fines incurred or suffered by Audubon resulting in whole or in part from a breach of the foregoing warranties.  If Supplies are rejected because of the presence of hazardous substances, radionuclides, or radioactive material, Audubon shall have the option to cancel this Purchase Order in whole or in part without liability to Supplier.
  9. Audubon is issuing this Purchase Order to Supplier in reliance of Supplier’s personal performance of the duties imposed on it under this Purchase Order.  By accepting this Purchase Order, Supplier agrees not to assign this Purchase Order, whether directly or indirectly, by way of transfer of assets, merger, operation of law or otherwise, or to subcontract or otherwise delegate the performance of its duties without the written consent of Audubon which may be withheld for any or no reason.  Any attempted assignment, subcontract or delegation made in contravention of this Section 9 shall be void ab initio and Audubon shall have the option to cancel this Purchase Order in whole or in part without liability to Supplier. 
  10. If Supplier becomes insolvent, has business failure, commits an act of bankruptcy or is adjudicated bankrupt, or if at any time Audubon reasonably believes that Supplier may fail to perform for one of the above reasons, or if Supplier has failed to perform completely any other contract with Audubon, then Audubon may cancel this Purchase Order in whole or in part without liability to Supplier.
  11. IN NO EVENT SHALL AUDUBON BE LIABLE TO SUPPLIER FOR ANY INCIDENTAL, INDIRECT, SPECIAL CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THIS PURCHASE ORDER, WHETHER OR NOT AUDUBON WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
  12. This Purchase Order may be transmitted and/or accepted by facsimile or by electronic mail.  This Purchase Order shall be governed by the laws of the Commonwealth of Kentucky.  Supplier irrevocably consents to the personal jurisdiction of the state and federal courts in and for Henderson County, Kentucky, and irrevocably waives any claim it may have that any proceedings brought in such courts have been brought in an inconvenient forum.  If any term or conditions of this Purchase Order is found to be invalid, it shall not affect the validity of any other term or condition herein.  No waiver of a term or condition of this Purchase Order shall constitute a waiver of any other term or condition.

Updated: 09/01/2011