Ultramet CPT Terms & Conditions

These Terms and Conditions govern the provision of goods and/or services by Ultramet CPT (“Ultramet CPT”) to the customer named in any Ultramet CPT Quote, Purchase Order, or Order Acknowledgment duly executed by and between said customer and sent to Ultramet CPT (“Customer”).  By signing a Purchase Order accepting an Ultramet CPT Quote for goods fabricated by Ultramet CPT (“Goods”) or for Ultramet CPT treatment (“Treatments”) of Customer-supplied parts (“Parts,” and after the application of Treatments, “Treated Parts”), Customer confirms its acceptance of these Terms and Conditions.  These Terms and Conditions together with the terms of the applicable Purchase Order and Order Acknowledgment comprise the entire agreement between the parties and supersede all prior or contemporaneous agreements or understandings, including any quotation, invoice, or purchase terms of the Customer regardless of whether Customer has submitted its Purchase Order on such terms.

 

1. Order Mechanics; Purchase Order. Customer may accept any Ultramet CPT Quote by delivery of a Purchase Order to Ultramet CPT.   These Terms and Conditions shall govern each offer to purchase Goods or Treatments that Customer may make by the execution of a Purchase Order, and Ultramet CPT may accept by written confirmation of such Purchase Order (an “Order Acknowledgment”).  Each Purchase Order submitted by Customer and accepted by Ultramet CPT via Order Acknowledgment shall be deemed to incorporate these Terms and Conditions.  In the event of a conflict between these Terms and Conditions and any Purchase Order, these Terms and Conditions shall govern unless specifically waived in a writing signed by the parties.

2. Risk. Risk of loss or damage to all Parts shipped by Customer shall pass to Ultramet CPT upon receipt by Ultramet CPT.  Risk of loss or damage to all Goods and Treated Parts shipped by Ultramet CPT shall pass to Customer upon delivery to a carrier for shipment. 

3. Payment. Any stated prices on the Purchase Order are for the indicated Goods, Treatments, and any other specifically indicated items. Customer will pay all shipping, freight, insurance, customs, VAT and import duties, and all other costs of shipment (any such costs over and above the amounts shown on the Purchase Order/Order Acknowledgment will be billed separately by Ultramet CPT).  Customer acknowledges that (i) the efficacy of any planned Treatment is based on a number of factors including information provided by Customer, (ii) that individual “job shop” and experimental projects and Treatments are performed on a commercially reasonable efforts basis only and (iii) that regardless of the efficacy of any Treament or the outcome of any job shop project or Treatment Customer shall be responsible for payment of all amounts with respect to such project or Treatment. Customer shall pay as follows: (i) within the agreed upon terms with the Purchase Order.  In the event that Customer cancels a Purchase Order, Customer will be responsible for payment for all work completed up to the time of cancellation, with such amount to be determined in the sole discretion of Ultramet CPT.  Failure to pay timely shall permit Ultramet CPT (x) to cancel any pending Purchase Orders, or (y) to keep them in force subject to an extension of the scheduled delivery time at the discretion of Ultramet CPT, and/or (z) to claim damages for amounts due from such non-payment (up to the amount in the Purchase Order).  Any amount due from Customer not paid timely shall incur interest at the rate of 1.5% per month until paid in full. 

4. Delays and Force Majeure. All shipping dates are approximate and are based upon availability of materials, production schedules and other factors.  Ultramet CPT will not be liable for any damage, loss, fault or expense arising out of non-delivery, faulty or delayed delivery or other nonperformance of this Agreement caused by circumstances beyond Ultramet CPT’s reasonable control, including but not limited to riots, civil unrest, war, terrorism, fire, insurrection, requisition, seizure, embargo or defects or delays in deliveries by sub-contractors, strikes, lockouts, slow downs, lack of transportation, scarcity of materials, labor shortages, energy shortages or any other cause or condition beyond Ultramet CPT’s reasonable control.

5. Information. Ultramet CPT is not responsible for the appropriateness of Ultramet CPT Goods or Treatments for use in Customer’s operations.  Ultramet CPT has made reasonable effort to verify all information in technical data sheets, but cannot guarantee that the information therein will apply to Customer’s situation or process.  Suggestions, advice, and other service, beyond any specific information of Ultramet CPT contained in Ultramet CPT’s technical data sheets, are used by Customer at its own risk and sole responsibility.  All diagrams and data sheets shall only constitute a description of the Goods and Treatments without any implied warranty whatsoever.

6. Nonconforming Goods.  

• Customer shall inspect any Goods or Treated Parts within 30 days of receipt thereof (“Inspection Period”) and shall be deemed to have accepted such Goods or Treated Parts unless it notifies Ultramet CPT in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Ultramet CPT. “Nonconforming Goods” means Goods or Treated Parts that are materially different from those identified in the applicable Purchase Order.

• If Customer timely notifies Ultramet CPT of any Nonconforming Goods, Ultramet CPT shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods or Treated Parts, or (ii) credit or refund the purchase price of such Nonconforming Goods. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to Ultramet CPT.  If Ultramet CPT exercises its option to replace the Nonconforming Goods, Ultramet CPT shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer the replaced Goods or Treated Parts.

• Customer acknowledges and agrees that the remedies set forth in this Section 8 are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided in this Section, Customer has no right to return Goods or Treated Parts purchased under this Agreement to Ultramet CPT.

7. Confidentiality. Any non-public information, including but not limited to, drawings, descriptions and any other technical documents which Ultramet CPT has made or may make available to the Customer (“Technical Information”) shall remain the property of Ultramet CPT and shall be treated as confidential by Customer and its representatives and shall not, without the written consent of Ultramet CPT, be copied, reproduced, or transferred to third parties or be used for any purpose other than the Customer’s evaluation of the Goods or Treatments.  Confidential Information shall be returned or destroyed upon Ultramet CPT’s request.

8. Security Interest. Customer grants Ultramet CPT a security interest in the Goods and Treated Parts to secure Customer’s obligations hereunder.  Customer appoints Ultramet CPT its attorney-in-fact to execute financing statements to perfect such security interest.  Ultramet CPT shall have all rights as a secured party under the Uniform Commercial Code.  Title to all Goods and Treated Parts shall remain with Ultramet CPT until all amounts have been paid pursuant to the applicable Purchase Order.

9. Product Liability. Ultramet CPT shall not be liable for any use of the Goods or Treated Parts by the Customer or third parties, including any loss, damage or liability arising from or related to the Goods or Treated Parts, after they have been delivered to the Customer.  Customer shall indemnify, defend and hold Ultramet CPT harmless for any such loss, damage or liability relating to the Goods or Treated Parts after they are delivered to the Customer.

10. Limitation of Liability. IN NO EVENT SHALL ULTRAMET CPT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATED TO ANY BREACH OF THIS AGREEMENT OR RELATED TO GOODS OR TREATED PARTS DELIVERED TO THE CUSTOMER, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER, WHETHER BASED ON THEORIES OF CONTRACT, NEGLIGENCE OR WARRANTY; EXCPET THAT THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY RESULTING FROM ULTRAMET CPT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

11. Governing Law. These Terms and Conditions and the relationship with Customer, including but not limited to any Purchase Order, shall be governed by the internal laws of the State of California excluding its conflicts of laws and choice of laws provisions.

12. Termination. Ultramet CPT may terminate its relationship with Customer, including any Purchase Order, upon written notice to Customer, if Customer (i) fails to comply with these Terms and Conditions, (ii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings related to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, or (iii) provides Parts or other materials which do not conform to (a) the Customer provided specifications or (b) the Ultramet CPT specifications/requirements for use or are otherwise unsuitable for use.

13. Indemnities and Collection Costs. Customer will defend, indemnify and hold Ultramet CPT harmless from and against any claims, demands, liabilities (including reasonable attorneys fees and costs) arising from or related to breach by Customer of its obligations to Ultramet CPT.  If Ultramet CPT brings an action to collect any amount owed by Customer or to enforce this Agreement (including but not limited to the Purchase Order), then Ultramet CPT shall recover its reasonable attorneys fees and costs (including on any appeal).

14. Special Provisions for Treatments Applied to Customer Parts. In addition to Ultramet CPT’s general terms and conditions set forth above, the following will apply for sale of tantalum Treatments of Customer supplied Parts:

• Pricing is initially based on Customer-supplied data.  Prices may not include costs of shipping, insurance, handling, cleaning of Parts or materials, process or preparation work, packaging, taxes, duties or storage.   In the event of inaccuracies or errors in Customer-supplied data or other additional costs as set forth above, Ultramet CPT will specify in its confirmation or otherwise the corrected price (which may not be known until the Parts or materials are received and examined by Ultramet CPT).   Customer will have 10 days to reject the corrected price and request return of the Parts at Customer’s expense.  

• Risk of Damage to Parts. Customer understands that (i) the Treatments may expose Parts to temperatures between 800C-1800C for a period of several hours and (ii) acid tests may be performed on the Parts as part of quality control procedures, either of which may damage or change the mechanical properties of certain materials.  It is Customer’s responsibility to confirm that the Parts are able to withstand Treatment and acid tests and that any Treated Parts are suitable for Customer’s intended use.  Ultramet CPT will use commercially reasonable efforts to confirm that any Parts are able to withstand Treatment and acid tests without damage to the Parts, but Ultramet CPT is not responsible if a Part fails a Treatment or acid test or is damaged during such Treatment or acid test.