Terms and Conditions of Sale

1. ORDER SUBJECT TO ACCEPTANCE– All orders are subject to approval and acceptance in writing by Superior Graphite Co. (“SG”).
2. ENTIRE AGREEMENT / PRECEDENCE– All products and services furnished by SG are sold on the terms and conditions stated herein. Acceptance of orders, whether oral or written, and SG’s performance under any proposal or contract, is based on the express condition that buyer agrees to all of the terms and conditions contained herein. Acceptance of delivery by buyer shall constitute buyer’s assent to these terms and conditions. No modification of any these terms shall be affected by buyer’s purchase order, shipping request or similar form containing printed terms and conditions conflicting or inconsistent with the terms herein. These terms and conditions shall take precedence over any terms and conditions contained in Buyer’s purchase order. No term or condition of any purchase order additional to, or different from, the terms and conditions set forth herein, shall become part of any agreement between SG and Buyer unless expressly agreed to in writing by SG.
3. PRICE / DELIVERY– Unless otherwise explicitly specified on SG’s invoice, price and delivery terms are EXW (Incoterms 2010) SG’s facility. SG’s prices do not include VAT, or other taxes and excises levied by any governmental authority, either directly or indirectly, upon the sale, transportation or use of any products covered hereby, and the buyer is responsible and must pay any such taxes and excises. Delivery dates are estimates only and are based on timely receipt of all necessary information from buyer. SG may, at its option, make partial shipment and invoice Buyer therefor. Buyer may not cancel a purchase order accepted by SG without the express written consent of SG.
4. INSPECTION / ACCEPTANCE / RETURN– Buyer shall be conclusively deemed to have inspected and accepted the products within 10days of receipt. Any deficiency in the quality or quantity of such products must be reported within 5 days after such deficiency is or should have been discovered during the inspection period.Buyer’s claims regarding any such deficiency not discovered or discoverable during the inspection period shall be barred if not reported within the reporting period, except and to the extent that such claims are valid under SG’s warranty as set forth herein. Buyer may not return any products, under warranty claim or otherwise, without first reporting to SG the reasons for such return and obtaining SG’s prior approval therefor, and then observing such reasonable instructions as Seller may give in authorizing any return.
5. PAYMENT / SECURITY– Unless otherwise agreed in writing, payment terms are net 30 days from date of invoice for a SG credit approved buyer or as otherwise stated in the SG order confirmation. SG reserves the right to charge interest, or a fee in lieu of interest, at the highest rate allowed by law on all overdue accounts, plus all costs associated with the collection of such overdue accounts (including, without limitation, attorneys’ fees). Whenever SG reasonably deems itself insecure, SG may cancel any outstanding purchase order with Buyer; decline to make delivery of products to Buyer; withhold or revoke any extension of credit, reduce any unpaid debt by enforcing its security interest, created hereby, in all products (and proceeds therefrom) sold by SG to Buyer and take any other reasonable steps to secure itself with respect to Buyer’s payment for products and services furnished or to be furnished by SG.
6. RETENTION OF TITLE– Notwithstanding that the products shall be delivered in accordance with the Incoterm specified in paragraph 3 and that the risk of loss shall pass to Buyer at such time as SG places the products at the disposal of Buyer, it is the intention of SG and Buyer that title to and right to possession of such products shall remain with SG until, and Buyer shall have the right to title only when, the entire purchase price therefor is paid in full to Seller. If, contrary to such intention, title to the products is construed or held to have passed to Buyer at any time prior to payment in full of the purchase price, it is the intention of SG and Buyer that SG shall have, and Buyer hereby grants to SG in such event, a security interest in such products and all proceeds therefrom. Buyer shall cooperate with SG in complying with all applicable laws and regulations and perform all acts deemed necessary or advisable by SG to perfect and ensure SG’s security interest in such products. If requested by SG, either prior to delivery or at any time when any part of the purchase price remains unpaid, Buyer shall give to SG in SG’s usual form, a financing statement or such other document as may be required to perfect such security interest.
7. WARRANTY AND DISCLAIMER– Buyer assumes all risk and liability for the use of SG’s products, whether used singly or in combination with other products. SG warrants to buyer that all SG’s products furnished by it shall, as to the time and place SG makes delivery, conform in content with SG’s published specification sheet in force on the date of acceptance of the order, with exception of non-material variations, and shall be free from defects in workmanship or materials under normal conditions of use, for six months from the date of delivery (or three months in the case of replacement products). THE FOREGOING WARRANTY EXTENDS ONLY TO BUYER, AS THE ORIGINAL PURCHASER, AND IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. Any claim relating to SG’s warranty must be made in detail and in writing and promptly pursued. Six months after SG delivers the products (or three months in the case of replacement products), all of SG’s warranties and other duties with respect to the quality of the products delivered shall be conclusively presumed to have been satisfied, and SG shall have no further liability with respect to such Products. In case of SG’s breach of warranty or any other breach of the transactions contemplated by these terms and conditions (including, without limitation, any repair made or undertaken to be made under warranty), the exclusive remedies therefor shall be: (i) repair, (ii) replacement or (iii) repayment of, or credit for, the purchase price of the defective products upon return of the defective products. Selection among the exclusive remedies described above shall in each case be at SG’s sole discretion and subject to Buyer’s compliance with SG’s return policies.
8. IDEMNIFICATION– SG agrees to indemnify Buyer from and against losses and direct damages, including attorney’s fees and court costs, arising out of any personal injury or property damage sustained by any person as a result of the use of the products provided by SG to Buyer, but only in proportion to SG’s own negligence. SG shall have no obligation to defend Buyer against such claim or demand. Buyer must promptly give notice of any claim that may involve a right to indemnification, and SG, at its sole discretion and cost, shall have the option to participate in the defense of the claim. Buyer shall indemnify and hold harmless SG and its affiliates, and shall pay to SG the monetary value of any losses arising, directly or indirectly, from or in connection with (i) Buyer’s use of the products and (ii)any negligence or willful misconduct of Buyer in connection therewith.
9. LIMITATION ON LIABILITY– UNDER NO CIRCUMSTANCES WILL SG, ITS LICENSORS OR RELATED PERSONS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF DISTRIBUTOR OR ITS DEALERS OR CUSTOMERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF GOODWILL, USE OF MONEY, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH SG, ITS LICENSORS AND RELATED PERSONS MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO SUPPLIER BY DISTRIBUTOR FOR THE SPECIFIC ITEM THAT DIRECTLY CAUSED THE DAMAGE. THIS SECTION WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY, DESPITE THE FOREGOING EXCLUSION AND LIMITATION.
10. FORCE MAJEURE– SG shall not be liable for delays in shipment or default in delivery for any reason of force majeure or for any cause beyond SG’s reasonable control including, but not limited to, (a) governmental action, war, riots, civil commotion, embargoes or martial laws, (b) SG’s inability to obtain necessary materials from its usual sources of supply, (c) shortage of labor, raw material, production or transportation facilities or other delays in transit, (d) labor difficulty involving employees of SG or others, (e) fire, flood or other casualty, or (f) other contingencies of manufacture or shipment, including but not limited to, lack of shipping space or third party infringement claims. In the event of any delay in SG’s performance due in whole or in part to any cause beyond SG’s reasonable control, SG shall have such additional time for performance as may be reasonably necessary under the circumstances. Acceptance by buyer of any products shall constitute a waiver by buyer of any claim for damages on account of any delay in delivery of such products. In the event of a shortage of production or supply of products for any reason, SG reserves the right to allocate its supplies of products to itself as well as to unaffiliated customers, as it deems equitable.
11. RISK OF LOSS– Delivery of products or carrier shall be delivered to Buyer, and thereupon risk of loss or damage shall be Buyer’s. Any claim by buyer against SG for shortage or damage occurring prior to such delivery must be made in writing within 20 days after receipt of shipment and accompanied by original transportation bill signed by carrier noting that carrier received goods from SG in the condition claimed. Any claim by buyer for damage occurring during shipment shall be made directly against carrier, with a copy of such claim forwarded to SG.
12. SEVERABILITY– In the event that any one or more of these terms or conditions is held invalid, illegal or unenforceable, such provision or provisions shall be severed and the remaining terms and conditions shall remain binding and effective.
13. GOVERNING LAW AND ARBITRATION–
    1. This Agreement shall be governed by the laws of the State of New York, U.S.A., excluding its conflict of laws provisions. The parties hereby exclude application of the U.N. Convention on Contracts for the International Sale of Goods from this Agreement and any transaction between them related thereto.
    2. Except as otherwise contemplated in section 13.3, the parties agree to submit any and all claims, demands, disputes, controversies, differences or misunderstandings arising out of or relating to this Agreement, or the failure or refusal to perform the whole or any part hereof, to arbitration conducted in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”), except where those rules conflict with this provision, in which case this provision controls. Arbitration shall be conducted before a single arbitrator unless the amount in dispute exceeds $250,000. If the amount in dispute exceeds $250,000, it shall be decided by three arbitrators, one to be selected by each party and the two party appointed arbitrators to agree upon the third. Under no circumstances are the arbitrators authorized to award damages contrary to Section 16 (the limitation on liability clause) of this Agreement. The arbitration shall be held in New York, New York. Absent agreement of the parties, or an order by the arbitrator(s) based upon compelling evidence of need, there shall be no discovery in the arbitration. The arbitrators shall be authorized to award costs and attorney’s fees or to allocate them between the parties. Any court with jurisdiction shall enforce this clause and enter judgment on any award.
    3. Nothing in this Section will prevent SG from seeking interim injunctive relief against Buyer or filing an action against Buyer to collect unpaid and past due amounts in the courts having jurisdiction over Buyer.
    4. All limitations herein on SG’s liability and remedies for breach of any duty of SG to Buyer or any other user of SG’s products are extended to SG’s affiliates, suppliers, distributors , and service providers, insofar as they may have any duties to Buyer or any other user of SG’s products.
14. WAIVER– Waiver by SG of any breach of these terms and conditions shall not be construed as a waiver of any other breach, and failure to exercise any right arising from any default hereunder shall not be deemed a waiver of such right which may be exercised at any subsequent time. No waiver shall be effective unless it is in writing and signed by a duly authorized representative of SG.