United States

These are the Terms and Conditions of Purchase for Stillwater Mining Company and each of its divisions and affiliated companies, (purchaser). These “Terms” along with the specific ordering information contained on the face of this form, constitute Purchaser’s Order with you, the “Seller”, bidding to supply these items.

1. Acceptance. This Order constitutes an offer to purchase and not an acceptance of any offer to sell, the goods and/or services described herein, and may only be accepted in accordance with its terms, without modification, addition or deletion, Shipment of any goods or performance of any services ordered hereunder constitutes acceptance of the Terms of this Order. In the event Seller’s quotation, acknowledgment, confirmation, invoice or other forms state terms additional to or different from those set forth herein, this Order shall be deemed a notification of objection to such additional and/or different terms and a rejection thereof. No waiver or modification of these Terms shall be binding upon Purchaser unless made in writing and signed by Purchaser’s authorized representative.
2. Modifications. Purchaser reserves the right at any time to make changes in drawings and specifications as to any goods and/or services covered by this Order. If any such change causes an increase or decrease in the cost of or time required for filling this Order, subject to the following sentence, and equitable adjustment shall be made in the purchase price or delivery schedule, or both, and this Order will be modified accordingly. Any claim for adjustment under this clause must be asserted by the party claiming such adjustment in writing within thirty (30) days from the date of the notice effecting the change. Notwithstanding any claims for adjustment, Seller shall proceed with this Order as changed and acceptance by Purchaser of the goods or services to be provided hereunder shall not constitute a waiver of any claim for adjustment asserted by Purchaser or an acceptance of any claim for adjustment asserted by Seller.
3. Time is of the Essence. Delivery of goods and performance of services at the time specified are of the essence of this Order. In addition to any other remedies, if delivery has not been timely made, Purchaser, upon written notification to Seller, may require the supplier to work on an overtime schedule and further may require the goods to be shipped by special overland transportation and/or air freight. In such event, Seller shall be responsible for all additional transportation and/or air freight. In such event, Seller shall be responsible for all additional overtime charges, transportation expenses, and other costs to achieve performance.
4. No Deviations, Quality Program. All goods and/or services shall be furnished in strict accordance with specifications and at the prices contained herein, Seller agrees that all goods provided under this Order shall conform in all respects with the Purchaser’s specifications.
5. Inspection. Purchaser shall have the right to inspect and test all goods under this Order at all times and places during manufacture. All goods and/or services are subject to inspection and testing by Purchaser after arrival at the final destination. To the extent Purchaser rejects goods as nonconforming, the quantities under this Order will automatically be reduced unless Purchaser otherwise notifies Seller. Defective goods not in accordance with Purchaser’s specifications will be held for instructions and at Seller’s risk, and if Seller so directs will be returned at Seller’s expense. Seller’s failure to provide written instructions within ten (10) days, or such shorter period as may be commercially reasonable under the circumstances after notice of nonconformity, shall entitle Purchaser, at Purchaser’s option, to charge Seller for storage and handling or to dispose of the goods without liability. Certificates of inspection or tests shall be furnished to Purchaser if required by Purchaser. Payments for goods prior to inspection shall not constitute an acceptance thereof, and neither inspection, failure to make inspection, nor acceptance of goods shall release Seller from any of the warranties or other provisions of this Order nor impair Purchaser’s rights to reject or revoke acceptance of nonconforming goods.
6. Warranties. All warranties shall run to the Purchaser, its successors, assigns, and customers and users or owners of the goods provided under this Order. Seller warrants that all goods provided hereunder are free and clear of all liens and encumbrances whatsoever and that Seller had good and marketable title to same. Seller also warrants that all goods and services will be free from any actual or claimed patent, copyright or trademark infringement, in addition to all warranties which are prescribed or implied by law. Seller expressly warrants that the goods and/or services conform strictly to the specifications, drawings, samples or other descriptions furnished or specified by Purchaser are merchantable, of good material and workmanship, and free from defects; are suitable for the use intended; conform to recognized industry standards of quality and function; and conform in all respects, in the production, sale, delivery and use thereof with all applicable laws and governmental orders, rules and regulations. In addition to any other remedies available to Purchaser, Seller agrees, at Seller’s expense and at the convenience of the owner and the direction of the Purchaser, to repair, replace, or otherwise correct any defective or nonconforming goods and workmanship discovered within the maximum time permitted by law, which shall be no less than three (3) years from the later of; (a) date of acceptance of work and/or goods in the event such work and/or goods are purchased for Purchaser’s use or the date of acceptance by the owner or the principal contractor of the entire project for the purposes of which Purchaser ordered the work and/or goods covered by this Order, or (b) date the defective goods and/or workmanship were discovered by Purchaser or its designate.
7. Compliance with Laws; Equal Opportunity. Seller shall comply with all applicable foreign, federal, state and local laws, orders, rules and regulations, including but not limited to the civil rights and equal opportunity provisions thereof, the Fair Labor Standards Act, the Vietnam Veterans Readjustment Act of 1974, Section 503 of the Rehabilitation Act of 1973, Executive Order 11246 of September 25, 1965, and implementing rules and regulations thereof. List of Equal Opportunity Clauses:
   1. Executive Order 11246 of September 25, 1965
   2. 41 CFR 60-1.4, Equal Opportunity Clause
   3. 41 CFR 60-1.7, EEO – 1 Reports
   4. 41 CFR 60-4.2, Notice of Requirement for Affirmative Action to Ensure EEO
   5. 41 CFR 60-4.3, Standard Federal EEO Construction Contract Specifications
   6. 41 CFR 60-250.4, Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era
   7. 41 CFR 61-250.10, Employment Reports on Special Disabled Veterans of the Vietnam Era
   8. 41 CFR 60-741.4, Affirmative Action for Handicapped Workers
   9. 41 CFR 52.219-8, Utilization of Small Business Concerns and Small Disadvantaged Business Concerns (Aug., 1980)
   10. 48 CFR 52.219, Small Business and Small Disadvantaged Business Subcontracting Plan (Aug., 1980)
   11. 48 CFR 219-13, Utilization of Women-Owned Small Businesses (Aug., 1980)
   12. 48 CFR 52.222-26, Equal Opportunity (Apr., 1964)
8. Termination for Convenience. Purchaser may at any time by written notice to the Seller, cancel this Order in its entirety or any part thereof at its convenience. Such termination shall be effective in the manner specified in said notice and shall be without prejudice to any claims which Purchaser may have against the Seller. Upon receipt of such notice, Seller shall, unless the notice directs otherwise, immediately discontinue work and the placing of orders for goods and supplies in connection with the performance of the Order; make every reasonable effort to procure cancellation of existing orders upon terms satisfactory to Purchaser; and thereafter do only such work as may be necessary to preserve and protect work already in progress and to protect goods or equipment in transit. In the event of such termination, Purchaser shall pay Seller only for the costs incurred by Seller relating to work already performed and necessary preservation costs determined in accordance with sound accounting principles, and Seller shall not be entitled to any anticipatory profit. The goods or uncompleted portion of the goods shall be the property of Purchaser’s written shipping or other disposition instructions.
9. Termination for Cause. If Seller fails to deliver the goods or to perform the services at the time specified herein or otherwise defaults in the performance of any of its obligations hereunder and the default continues for ten (10) days, or if seller becomes insolvent, a trustee or receiver of Seller’s business or assets is appointed. Seller makes an assignment for the benefit of creditors, or a petition in bankruptcy is filed by or against Seller, then in any such event, Purchaser at its option, may cancel this Order in whole or in part and any other agreement, order confirmation, or terms of sale between the parties, by written notice to Seller. Purchaser shall have no liability or obligation whatsoever to Seller by reason of or resulting from such cancellation. In addition to any other remedies available, Purchaser may re-procure similar goods or services elsewhere in such manner as Purchaser may deem appropriate. Seller shall be liable to Purchaser for any excess costs in re-procuring the similar goods or services plus any incidental and consequential damages. Should it be determined for any reason that Purchaser had no right to cancel this Order for cause the cancellation will be deemed to have been made pursuant to Clause 8 entitled “Termination for convenience” and the rights and obligations of the parties shall be governed by said Clause 8.
10. Insurance. If labor is to be furnished, Seller shall, before starting work, furnish Purchaser with certificates of insurance evidencing Worker’s Compensation Insurance in amounts prescribed by applicable statute, Comprehensive General Liability Insurance with limits of $500,000/$1,000,000, for bodily injury and limits of $100,000 for property damage, and Automobile Liability Insurance of owned and non-owned vehicles with limits of $500,000/$1,000,000 bodily injury and $100,000 property damage.
11. Indemnity. Seller agrees to indemnify, defend and hold harmless Purchaser, its officers, directors, employees, and agents and uses of the purchased goods and/or services from and against all losses, damages (including incidental and consequential damages), liabilities, and claims, at law or in equity (including all reasonable costs, expenses and attorney’s fees incurred in connection therewith) related to or arising out of: (a) the acts or omissions of the Seller, its servants, agents, subcontractors or licensees during the performance of the work or the furnishing of goods called for by this Order, including the use by the Seller, its employees, licensees, agents or subcontractors of scaffolding, ladders or similar equipment furnished or owned by Purchaser or the owner except to the extent such losses are directly attributable to the willful misconduct or gross negligence of Purchaser; or (b) any misrepresentation, breach of warranty, default or non-fulfillment of any agreement or covenant on the part of Seller under this Order.
12. Affidavits; Other Certifications. Before final payment is made, Seller shall, if requested, satisfy Purchaser by affidavits or otherwise that there are no outstanding liens for labor or goods against the property of the owner or Purchaser by reason of any work done or goods furnished hereunder. Seller shall also provide Purchaser with such other certifications as Purchaser may reasonably request, including a certification of the ingredients in goods supplied under this Order.
13. Independent Contractors. The Parties to the Order are independent contractors, and nothing contained herein shall be construed to place them in the relationship of employer and employee, partners, principal and agent or joint ventures. Seller agrees to indemnity and hold Purchaser harmless from and against and with respect to all contributions, taxes, penalties and assessments of any foreign, federal, state or local agency or authority arising out of or in any way relating to the performance of work called for by this Order. In the event Purchaser shall be obliged to make payment of any such contributions or taxes, Purchaser may deduct from the amounts otherwise due to the Seller an amount equal to such contributions or taxes, together with penalties and assessments, if any, occasioned by Seller’s failure to make such payments.
14. Facility Procedures and Clean-up. Seller agrees to comply strictly with all of Purchaser’s facility rules and procedures. In addition, Seller will leave the premises clean and, in a condition, satisfactory to the Purchaser upon completion of the work hereby ordered and shall remove all debris incidental thereto.
15. Remedies Cumulative. The remedies herein provided shall be cumulative and in addition to any other remedies provided at law or in equity.
16. No Waiver. Failure of Purchaser to insist upon strict performance of any of the terms and conditions herein shall not be deemed a waiver of any rights or remedies that Purchaser may have and shall not be deemed a waiver of any subsequent default in the terms and conditions hereof. The shipping or receiving of any goods under this Order or payment therefor shall not be deemed a waiver of any rights for any prior failure by Seller to comply with any of the provisions of this Order.
17. Inconsistencies. In the event of any inconsistency or conflict between the general terms and conditions set forth on this page and any other terms and conditions on the face of this order, the terms and conditions on the face of the Order shall take precedence.
18. Title and Risk of Loss. Title and risk of loss shall remain with Seller until the goods are accepted by Purchaser or delivered to the destination designated by Purchaser, whichever is later.
19. Shipping Instructions. Goods sold at the delivered prices or freight allowed must be shipped transportation prepaid. No parcel post or insurance charges shall be allowed except as provided above. The order and requisition numbers and other instructions are included on the face of the Order.
20. Taxes. Seller’s total price shall be inclusive of all taxes, duties, fees, imposts and other governmental charges. Seller shall list any applicable impost, duty or tax separately on its invoice. Any such item not separately stated shall not be payable by Purchaser.
21. Invoices. Mail invoice and B/L on date of shipment. Mark all packages, invoices, B/L’s, packing lists and correspondence with Order Number. We pay no charges not shown on the Order. Prepaid transportation Charges must be supported by a receipted Transportation Bill. Purchaser may deduct $50.00 per billing error from the amount due Seller for Seller’s billing errors.
22. Confidentiality. The procurement of goods and/or services under this Order and all plans, drawings, specifications, and other information given to Seller in connection with this Order involve valuable property rights of Purchaser and shall be held confidential by Seller, shall remain the Property of Purchaser and shall not be disclosed to third parties and/or used by Seller for any purposes (including Seller’s advertising or other marketing efforts) other than those for which they have been prepared or supplied under the Order unless Seller receives Purchaser’s prior written approval. Upon completion of this Order, Seller shall return all documents to Purchaser.
23. Severability. If any provision herein shall be adjudicated to be invalid, illegal or unenforceable, it shall not affect or impair the validity, legality or enforceability of this Order, or any provision hereof; and there shall be substituted for the affected provision a valid and enforceable provision as similar as possible to the affected provision. If such provision cannot be amended so as to be valid and enforceable, then this Order shall be deemed amended to delete therefrom the portion adjudicated to be invalid, illegal or unenforceable, such deletion to apply only with respect to the operation of the Order in particular jurisdiction in which such adjudication is made.
24. Assignment. This Order is not assignable or transferable without the prior written consent of the Purchaser.
25. Governing Law. This order shall be governed by and construed in accordance with the internal laws of the State of Montana, specifically the UCC, without regard to conflict of interest principles.
26. Force Majeure. Notwithstanding the provisions set forth above, in the event Seller or Purchaser is unable, in whole or in part, by force majeure (as defined below), to carry out its obligations under this Order, that party’s obligations, as they are affected by such force majeure shall be reduced or suspended during the continuance of the force majeure but for no longer period, and the party claiming the force majeure shall use its best efforts to remedy such force majeure with due diligence. The party hereto that is affected by force majeure shall give the other party notice of the force majeure as soon as possible after it occurs. The party giving notice of the force majeure shall further give notice of the time that the force majeure is no longer applicable. The term “force majeure”, as used herein shall mean acts of God, strikes, lockouts, injunction, acts or failure to act of governmental authorities, wars, riots, fires, floods, explosions, unavailability of fuel or power, national emergency and any other causes, whether of the kind herein enumerated or otherwise, not within the control of the party claiming suspension. Increased cost of performance of Owner profits, loss of profit opportunity and/or loss of economic benefit shall not be force majeure events for purposes of this Agreement and shall not be acceptable reasons for failing to remedy a force majeure event hereunder. It is understood and agreed that the settlement of strikes and lockouts shall be within the discretion of the party experiencing such labor problems, and that such party shall not be required to settle strikes or lockouts by acceding to the demands of the opposing party when such course in inadvisable in the discretion of such party. During the period of the force majeure, the party declaring force majeure shall have its obligation to the other party reduced or suspended, as the case may be, to the extent and for the period of the force majeure if the period of force majeure declared by Seller continues