1. ACCEPTANCE.   Eagle Superabrasives, Inc. (“Company”) proposes to sell to the Purchaser identified below certain Products manufactured by Company (“Products”) pursuant to the terms and conditions of sale stated herein and to no others.  The Terms and Conditions set forth herein shall be applicable to the purchase of any Products by Purchaser, unless altered in writing by the parties.  Purchase orders for Products will be accepted by the Company as long as no terms other than those set forth by Company are included on the purchase order. All contrary or additional terms and conditions of purchase or sale stated in Purchaser’s purchase order or any other commercial document prepared by or for Purchaser have been and are hereby expressly rejected by Company and deemed waived by Purchaser.
  2. PRICES.   Unless otherwise specified, prices are quoted F.O.B. Company’s warehouse in Hickory, North Carolina and are valid for thirty days. Company reserves the right to increase prices to reflect substantial increases, as determined by Company in its sole and absolute discretion, in Company costs.  Except where otherwise expressly stated in writing by Company, all prices quoted by Company are in U.S. Dollars.
  3. TAXES.   Quoted prices do not include sales, use, excise, privilege, duty, customs clearance or any similar tax or levy which shall be paid by the Purchaser or, in lieu thereof, Purchaser shall upon request provide the Company a tax exemption certificate acceptance issued by the appropriate taxing authorities.
  4. CANCELLATION.   An order once placed and production started by the Company can be cancelled by the Purchaser only with written consent of the Company and upon terms that will indemnify the Company against any loss, liability, loss of profit (direct and indirect) and any additional administrative or other costs incurred.  Notwithstanding the foregoing, the Purchaser may not cancel special orders and custom wheels for any reason  and no refunds will be made for such orders.
  5. DELIVERY.   If Purchaser orders custom wheels, the production time starts when Company receives these Terms and Conditions and the approved drawing, both of which have been signed by Purchaser.  Company’s sales representative can provide approximate delivery time for Purchaser’s type of wheel.  Unless otherwise agreed, all deliveries are F.O.B. Company’s warehouse in Hickory, North Carolina (current INCO Terms). Delivery schedule represents Company estimates only. The Company will not be liable for any delay in the performance of orders or contracts, or in the delivery or shipment of Products or for any damages suffered by the Purchaser by reason of such delay. Company reserves the right to over or under ship all quantities by maximum 10%.
  6. PAYMENT.   Unless specifically agreed upon in writing by the Company, the net purchase price must be paid immediately upon invoice and prior to delivery of the Products.  Invoices not paid within thirty (30) days after the date of the Company’s invoice will be subject to charges in the amount of one and one-half percent (1-1/2%) per month on any overdue unpaid balance. Payment on the due date shall be a condition precedent to further performance by Company, and without prejudice to other rights, Company may suspend performance under any contract Company has entered into with Purchaser until full payment has been received by Company.  Purchaser will be charged with a thirty-five dollar ($35.00) fee for each check returned by Purchaser’s bank. The Company’s invoice shall constitute an “evidence of indebtedness” to N.C. Gen. Stat. section 6-21.2 relating to the recovery of attorney’s fees. Purchaser shall reimburse the Company for the cost of collection, including court costs and reasonable attorneys’ fees, of any overdue amount owed by Purchaser to the Company, and such collection shall also be subject to the carrying charges.
  7. RISK OF LOSS.   All risk of loss to Products shall pass to the Purchaser upon delivery by the Company of such Products to a common carrier.
  8. LIMITED SIX MONTH WARRANTY.   Company warrants that the Products sold to Purchaser shall be free from defects in material or workmanship, and Company will repair, or in its sole discretion, replace, any product or part thereof found to be defective in material or workmanship, provided, such product or part is shipped freight prepaid to and received by Company within six (6) months after the date of shipment by Company.This limited warranty does not cover normal maintenance nor normal wear and tear, or use under circumstances exceeding specifications, abuse, unauthorized repair or alteration, lack of proper maintenance or damage caused by natural causes such as fire, storm or flood. This limited warranty is Purchaser’s exclusive remedy. COMPANY SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN WHERE COMPANY HAS BEEN ADVISED OF POSSIBILITY OF SAME. Except as otherwise provided, Company shall not be liable for transportation, labor or other charges for adjustments, repair, and replacements of parts, installation, or other work which may be done upon or in connection with the Products sold.     NO EXPRESSED OR IMPLIED WARRANTIES, WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR OTHERWISE, OTHER THAN THOSE EXPRESSLY SET FORTH ABOVE (WHICH ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES) SHALL APPLY TO THE PRODUCTS.
  9. CLAIMS.   Within ten (10) business days (unless otherwise agreed in writing) after receipt by Purchaser of Products sold, Purchaser must give written notice to the Company of any claim by it based upon the conditions, quality, or grade of the Products sold or of any claimed nonconformity with the Purchaser’s specifications, which notice must indicate the basis of Purchaser’s claim in detail. The failure of Purchaser to comply with this paragraph 9 shall constitute irrevocable acceptance of the Products sold by the Purchaser and bind the Purchaser to pay to Company the full price of Products.If a wheel supplied by Company is not performing as anticipated by Purchaser, DO NOT REMOVE FROM THE MACHINE.  Call Company immediately to be assisted by a live technician and given suggestions for Purchaser to try to improve the performance of the wheel.  Sending the wheel back to Company will slow down the troubleshooting process.    Purchaser may not return a wheel to Company without a Return Material Authorization number (RMA#).  Company will not accept returns without an RMA#.If a wheel is being tested and Purchaser needs assistance with testing the wheel or getting the best performance from the wheel, call Company at 800-417-7617.
  10. SAFETY DEVICES.   In using the Products, Purchaser shall follow all OSHA and ACGIH standards applicable to the use of the Products or the machinery on which they are used and shall use all safety devices and guards on the machinery and follow all procedures recommended by the Company or machine manufacturer. Should Purchaser fail to do so, Purchaser will indemnify and hold Company harmless from any risk, liability, or obligation to persons injured directly or indirectly in connection with the use or operation of the Products.  Purchaser shall follow all manufacturer safety guidelines for use of any machinery or other equipment utilizing the Products.  Purchaser shall hold harmless, release and indemnify the Company for any personal injury, death, property damage or any other loss of any kind whatsoever associated with use of the Products which arises from Purchaser’s failure to utilize the Products in the manner set forth herein.
  11. LIMITATIONS.   Any action by Purchaser under or relating to this Agreement or the Products sold must be commenced within one (1) year after such cause of action has accrued.
  12. CHOICE OF LAW.   This Agreement and any dispute or claim relating to it or the Products sold shall in all respects be governed by and construed according to the laws of the State of North Carolina.
  13. CHOICE OF FORUM, VENUE, AND CONSENT TO JURISDICTION.   The federal civil courts sitting in Iredell County, North Carolina, and the state civil court setting in Catawba County, North Carolina shall constitute the exclusive, alternative forums for the adjudication of any and all disputes or controversies arising out of or relating to this Agreement or the Products sold. Purchaser and Company consent to the exercise of jurisdiction over them by such courts with respect to any such dispute or controversy, and Purchaser and Company waive any objection to the assertion or exercise by such courts of such jurisdiction.
  14. ENTIRE AGREEMENT.   Purchaser and the Company acknowledge that these Terms and Conditions of Sale, together with Company’s invoice, constitute the entire agreement between the Purchaser and the Company with regards to the sale or transfer of the Products sold. These Terms and Conditions of Sale may not be amended, modified, or supplemented except by written agreement executed by the Purchaser and the Company. The provisions of this Agreement are hereby deemed by the parties to be severable.
  15. NOTICE.  Any notice to be given under this Agreement may be sent by certified mail (a) (in the case of notice to the Company) to its address stated above, or to its registered office; (b) (in the case of notice to the Purchaser) to its address stated on its order or (if none is so stated), to its registered office; or (c) (in either case) to such other address as the Company or the Purchaser shall have notified the other for this purpose