1. Bidding. By bidding on material from ERI, Customer agrees to these Terms and Conditions. Customer’s bid shall remain binding on Customer for a period of five (5) business days. If bid is accepted by ERI, all pricing shall be FOB, ERI Facility unless otherwise agreed upon by the parties in writing.
2. Purchase. Customer shall purchase material from ERI on an “As Is” basis without any warranty. ERI makes no representation or warranties as to any recoveries from the sold material. Customer shall have the right to inspect the product on arrival and, within seven (7) days after delivery, provide written notice to ERI of any defects. ERI shall have a reasonable right to cure any such defects. No returns will be accepted beyond seven (7) days from the date of delivery.
3. Material Weight: Final weights shall be in US pounds and determined by ERI’s certified scale weights for volume of material purchased. If Customer does not communicate weight discrepancy within 48 hours after the shipment is received, ERI weight from the certified scaled is considered to be final. If customer finds a discrepancy of more than 1%, Customer shall provide proof of the certified scale weight tags to ERI. ERI and Customer shall review both weight tags and agree on final weight in writing.
4. Title. Title to the material shall transfer from ERI to Customer at the time of Customer’s commitment to purchase material from ERI, regardless of when the material is physically picked up from the ERI shipping dock
5. Payment. In the event of a dispute with respect to such invoice, Customer shall provide written notice of such dispute to ERI, together with any undisputed amounts owed, on or before the due date for such payments.
6. Environmental Standards. Customer shall handle all material sold hereunder using standard methods approved in the industry and shall fully comply with all applicable laws, rules, regulations, certificates, standards, orders and ordinances. Customer shall take any action that jeopardizes ERI’s e-Stewards and/or NAID AAA certification in any respect.
7. Audit. Customer shall provide ERI, and/or ERI’s designated representative(s), access to any facility, documentation and/or personnel as may be reasonably necessary for ERI to audit Customer. If, as a result of such audit, ERI determines that Customer has breached these Terms and Conditions, Customer shall be responsible for remedying the breach within 30-days and for the associated expenses and costs of the Audit.
8. Governing Law/Binding Dispute Resolution. The Agreement shall be governed by and construed in accordance with the internal laws of the State of California applicable to agreements made and to be performed entirely within such state, without regard to the conflicts of law principles of such state. If the Parties shall submit all disputes, claims or demands of any kind relating to or arising out of this Agreement ("Controversy") to a three-step dispute resolution process. The three-step process shall (i) begin with informal negotiation conducted in good faith; (ii) be followed, if necessary, by mediation in a mutually agreeable location, not to be unreasonably withheld, initiated by a written demand of one Party served on the other, and if the mediator determines that the Controversy cannot be resolved by mediation or if either Party shall make a written demand therefor, then; (iii) the Controversy shall be submitted to binding arbitration in a mutually agreeable location, not to be unreasonably withheld, conducted by a neutral arbitrator, in accordance with the rules and regulations of the American Arbitration Association. The arbitration award shall include attorney’s fees and costs pursuant to this Agreement, and any damages or remedies otherwise available under applicable law, shall be supported by written conclusions of law and fact. Application may be had by any Party to any court of general jurisdiction for entry of judgment based on the arbitration award. The foregoing notwithstanding, either Party may maintain, for the purpose of obtaining a provisional remedy or provisional relief, any underlying action or claim on which such affirmative relief may be based.
9. Indemnification. Each party agrees to indemnify, save harmless, and defend the other, its affiliates, officers, directors, shareholders, employees and agents (each an “indemnitee”) from and against any and all liabilities, claims, penalties, forfeitures, suits, and the costs and expenses incident thereto (including costs of defense, settlement, and reasonable attorney's fees), which an indemnitee may hereafter incur, become responsible for, or pay out as a result of death or bodily injuries to any person, destruction or damage to any personal property, or any violation of governmental laws, regulations, or order to the extent caused by the other’s breach of this Agreement or by any negligent act, negligent omission or willful misconduct of the other, its agents, employees or subcontractors in the performance of this Agreement. The obligations described in this paragraph shall survive termination/expiration of this Agreement.
10. Limitation of Remedies, Liability and Damages. NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE.
11. Confidentiality. Each party shall hold confidential all confidential and trade secret information relating to the business of the other party and its affiliated and subsidiary companies disclosed to it by reason of this Agreement, including the terms of this Agreement, and will not disclose any of such information to any person or entity unless legally compelled to do so. Provided, however, that to the extent that a party may become so legally compelled, such party may only disclose the information if such party shall first afford the other party the opportunity to obtain an appropriate protective order or other satisfactory assurance of confidential treatment for the information required to be disclosed.
12. Force Majeure. If ERI is prevented from complying, either totally or in part, with any of the terms or provisions of this Agreement by reason of fire, flood, storm, strike, lockout or other labor trouble, any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental authority, riot, war, rebellion or other causes beyond the reasonable control of ERI, or other acts of God, then upon written notice to Customer, the affected provisions and/or other requirements of this Agreement shall be suspended during the period of such disability and ERI shall have no liability to Customer in connection therewith. ERI shall use reasonable efforts to remove the disability within thirty (30) calendar days of giving notice.
13. Nondisparagement. Neither party will make, or cause to be made, any statement or disclosure, whether direct or indirect, express or implied, oral or written, to any person, including without limitation any member of the press or public, if such statement is intended or will have the effect of disparaging, ridiculing or defaming the other party, any of its affiliated entities, past or present officers, directors, or employees, or products and services offered or owned by such other party.
14. Non-Solicitation and Non-Circumvention. Each party agrees that it will not, directly or indirectly, solicit for employment or hire, in any capacity, any employee of the other party or any of its affiliates; provided however, that the foregoing provision will not prevent either party from employing any such person who contacts such party on his or her own initiative without any direct or indirect solicitation or encouragement from such party. Each party further agrees that it will not, directly or indirectly, solicit any clients or client prospects that have been introduced to the other party or any of its affiliates; and in addition will not circumvent the other party in any business dealings originated or initiated by the other party with respect to a client, prospective client or business contact. Both parties agree not to take or allow to be taken any action during the term of this Agreement that has the effect of circumventing the terms of this Agreement, it being the intent of the parties that each abide by both the letter and the spirit of the terms of this Agreement.
15. Notices. Unless otherwise indicated herein, all notices, requests, demands or other communications to Customer and ERI shall be deemed to have been given or made immediately if by either facsimile or email, or when deposited in the mail, via registered or certified mail, return receipt requested, postage prepaid, or when delivered to an overnight delivery service. 16. Authority: Customer represents and warrants that the person submitting this bid has been duly authorized by the Customer. ERI shall be entitled to rely on the validity of the bid as binding on the Customer.