I. Acceptance. No terms and conditions other than the terms and conditions contained herein (the "Agreement") shall be binding upon Seller unless accepted by it in a writing signed by Seller. All terms and conditions contained in any other oral or written communication which are different from or in addition to the terms and conditions herein are hereby rejected and this document is the complete and exclusive statement of the terms, save for purchase orders submitted by Buyer for the purchase of the items contemplated by this Agreement (the "Products") which are consistent with this document and which are accepted by Seller (a "PO"). All sales of Products by Seller to Buyer are made expressly subject to these terms and conditions.
II. Price and Payment. Terms are net thirty (30) days unless otherwise noted. Seller reserves the right at any time to suspend, limit or otherwise modify the terms of such credit whenever, in Seller’s opinion, Buyer’s financial condition so warrants (including, but not limited to, requiring Buyer to make cash payment or provide other security prior to or upon tender by Seller of delivery of Products). A monthly charge of one and one and half percent (1.5%) (or the highest rate allowed under applicable law) on all sums outstanding will be added to each past due amount and Seller shall be entitled to all costs of collection (including reasonable attorneys' fees). Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including, but not limited to, federal, state, provincial and local sales, excise value added goods and services taxes and any other taxes. Product pricing is based on material costs and data provided at time of initial quote. Final Product pricing is subject to change based on material costs, quality requirements, revision level changes and other related program details. Buyer is responsible for any and all costs associated with secondary operations, quality control requirements, and EOAT (end-of-arm-tooling) determined after initial sampling.
III. New Tooling. Timelines for tool delivery in documentation from Seller begin after tool drawings are approved by Buyer. Any lead times quoted by Seller are null and void if engineering changes are made prior to or during the tool build. Revised delivery dates will be provided by Seller accordingly. Tool costs are based on data supplied by Buyer in its Request for Quote (RFQ). Buyer is financially responsible for all costs associated with changes or add-ons after Seller’s initial quote. Tool costs are subject to change based on final supplied data and program requirements.
IV. Transfer Tooling. Seller is not responsible for the condition of any tooling it receives from or on behalf of Buyer (“Transfer Tooling”). Seller shall not be responsible for any defects or damage to Products made using Transfer Tooling.
V. Storage. Seller shall store Buyer’s tooling, EOAT, product fixtures, and auxiliary equipment used by Seller to make the Products (“Product Equipment”) for a period of up to twelve (12) months after the last date of manufacture of the Products, provided Buyer has paid Seller in full. After twelve (12) months of storage, Seller may dispose of the Product Equipment unless Buyer either (a) pays the costs of shipping the Product Equipment to another location or (b) pays Seller to store the Product Equipment at a rate of $500.00 per pallet of Product Equipment stored per month, due on the first day of the month in which Seller is storing the Product Equipment. Buyer shall pay the storage fee for a full pallet used to store Product Equipment, even if the Product Equipment does not fill the entire pallet. IV. Material. Buyer shall pay for any unused material purchased by Seller on behalf of Buyer to make the Products within ninety (90) days after Seller purchasing such material. Seller may store such material for up to twelve (12) months free of charge. After twelve (12) months of storage, Seller may dispose of the material unless Buyer either (a) pays the costs of shipping the material to another location or (b) pays Seller to store the material at a rate of $300.00 per pallet per month, due on the first day of the month in which Seller is storing the material. Buyer shall pay the storage fee for a full pallet used to store Material, even if the Material does not fill the entire pallet.
VI. Shipment and Inspection. Subject to any contrary terms contained in a PO which are expressly accepted by Seller, all Products are shipped F.O.B. Seller’s facility and Buyer shall be responsible for arranging for and paying the carrier. Delivery schedules stipulated in any quotation (“Quotation”) are approximate only and shipment will be made within reasonable proximity thereto. Under no circumstances will the Seller be responsible for any damage whatsoever caused by delays in shipment, whether resulting from causes within or beyond the control of the Seller. Risk of loss and title shall pass to Buyer upon delivery to Buyer’s carrier. The cost of any special packing or handling required by Buyer or the nature of the Products shall be borne by Buyer. Claims for damage, shortage or errors in shipping must be reported within two (2) days following delivery to Buyer. Buyer shall have ten (10) days from the date Buyer receives any products to inspect such products and services for defects and nonconformance which are not due to damage, shortage or errors in shipping and notify Seller, in writing, of any defects, nonconformance or rejection of such Products. After such ten (10) day period, Buyer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Buyer shall have no right to reject the Products for any reason or to revoke acceptance. Buyer hereby agrees that such period is a reasonable amount of time for such inspection. Buyer shall have no right to order any change or modification to any PO or otherwise cancel any PO without Seller's written consent and payment to Seller of all charges, expenses (including material costs), work in progress (WIP), finished Products, and reasonable profits owed to or incurred by Seller. Buyer agrees that Seller may overship Products in any delivery in an amount not to exceed five percent (5%) of the total order quantity without penalty and with the right to bill for the entirety of such order.
VII. Representations. Buyer represents and warrants that: (a) the Products, their specifications and their sale or use do not and will not infringe any intellectual property rights of any third party, including, but not limited to, any trade secret, trademark, copyright or patent (except to the extent designed by Seller), and (b) the marketing, sale, distribution and use of the Products by Buyer comply and will comply with applicable laws and regulations.
VIII. Warranty. The exclusive and limited warranty provided by Seller hereunder is that the Products will conform to those specifications provided by Buyer and accepted in writing by Seller (the “Warranty”). Any claims that the Products fail to conform to the Warranty shall be made by Buyer to Seller in writing immediately upon discovery of such non-conformity, but no event longer than three (3) months after delivery, at which time the Warranty terminates. OTHER THAN THE WARRANTY, SELLER MAKES NO WARRANTY WITH RESPECT TO THE PRODUCTS, AND THE BUYER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The Warranty applies only to the extent that any nonconforming Products have been properly handled, used installed and/or maintained. Seller recommends that Buyer independently test the Products to determine suitability for the intended use and of any materials used in the manufacture of the Products (and Buyer is not relying upon Seller to determine said suitability).
IX. Limitation of Liability. In the event that it is determined that the Warranty has been breached, the liability of Seller and the remedies available to Buyer will be limited to the repair or replacement of the Product by Seller or the return of the purchase price of such Product, as determined by Seller in its sole discretion. SUBJECT TO THE FOREGOING LIMITATIONS, SELLER’S LIABILITY FOR ANY OTHER CLAIM RELATING TO THE PRODUCTS OR ANY SERVICE PROVIDED BY IT TO BUYER, WHETHER BASED ON BREACH OF CONTRACT, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCT. IN ADDITION, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS SAVINGS, BUSINESS INTERRUPTION OR LOSS OF ANTICIPATED BENEFITS, ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES AND/OR PRODUCT(S), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
X. Indemnification. Subject to the limitations on liability set forth in Section VI, the parties shall indemnify and hold each other and their respective affiliates, shareholders, members, directors, officers, employees and agents (“Indemnified Parties”) harmless from and against any loss, liability, damage or expense, including reasonable attorneys' fees (“Losses”), such parties may incur as a result or, arising out of or by reason of any breach, misrepresentation or nonfulfillment on the part of such party of this Agreement. Buyer shall further hold Seller Indemnified Parties harmless from and against Losses resulting from or relating to Buyer’s or its customers’ use, marketing, distribution or sale of the Products.
XI. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio (regardless of the laws that might be applicable under principles of conflicts of laws) as to all matters, including, but not limited to, matters of validity, construction, effect and performance. The parties hereby irrevocably consent to the exclusive jurisdiction of the courts of the State of Ohio in Cuyahoga County, and the United States District Court for the Northern District of Ohio, Eastern Division, and waive any contention that any such court is an improper venue for enforceability of this Agreement. Buyer acknowledges Seller’s right to a molder’s lien with respect to amounts due hereunder as provided by applicable law. The failure of Seller to insist upon performance of any provision or to exercise any right or privilege granted to Seller in this Agreement shall not be construed as waiving such provision or privilege. The invalidity of any terms or provisions hereof shall not affect the validity of the remaining terms or provisions, and this Agreement shall be construed as if such invalid terms or provisions had been omitted. Neither party shall be in default of its obligations hereunder to the extent that its performance is delayed or prevented by causes beyond its reasonable control, including but not limited to acts of God, civil disorders, acts of any civil or military authority, judicial action, terrorist acts, natural disasters, shortage of raw materials and strikes and other labor problems or shortages.