The following General Terms and Conditions of Purchase govern the purchase of all goods and services purchased by Cast Nylons Co., Ltd., an Ohio corporation (“Buyer”), from any seller thereof (“Seller”) and apply notwithstanding any conflicting, contrary, or additional terms and conditions in any quotation, confirmation form, acceptance invoice, bill of lading or other document or communication (“Invoice”) from Seller. These General Terms and Conditions may only be waived or modified in a written agreement signed by an authorized representative of Buyer. Neither Buyer’s acknowledgment of an Invoice nor Buyer’s failure to object to conflicting, contrary or additional terms and conditions in an Invoice shall be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof.
- ACCEPTANCE Purchase is expressly made conditional upon Seller’s acceptance of these General Terms and Conditions, which shall constitute the complete and final agreement between the parties, superseding all other agreements written or oral. This order becomes a binding contract upon these General Terms and Conditions when accepted by Seller either by acknowledgment or commencement of performance. Goods received by Buyer from Seller shall be deemed to be delivered only upon these General Terms and Conditions.
- BILLING & PAYMENT Seller must submit Invoices in a form acceptable to Buyer. Invoices covering shipments are to be accompanied by original and duplicate bills of lading or express receipts for shipments. All payments are made conditional and upon acceptance by Buyer of the goods called for hereunder. Buyer shall be entitled to offset against payments due pursuant to any Invoice any amount owed by Seller to Buyer or arising out of Buyer’s claim for damages against Seller from this or any other transaction with Seller. Prices stated hereunder apply as a maximum to all shipments made or services rendered hereunder. Buyer shall have no obligation to honor invoices for goods or services at any increased price until such increase shall have been accepted and confirmed in writing by Buyer. Unless otherwise specified, there shall be no additional charges in excess of the prices stated hereunder.
- CHANGES Buyer may at any time make changes in (a) the method of shipment or packing, (b) drawings, design, or specifications, and (c) quantities of articles ordered. If any such change causes an increase or decrease in the cost of or the time required for, performance by Seller, an equitable adjustment shall be made. Seller’s claim for such adjustment must be made within thirty (30) days from Seller’s receipt of notice of the change. Nothing herein shall excuse Seller from processing the order as changed.
- DELIVERY & PACKAGING The terms of delivery are as stated on the face of this order. The obligation of Seller to meet the delivery dates, specifications and quantities set forth herein is of the essence of this order. Deliveries are to be made both in quantities and at times specified herein, or, if not, such quantities and times are as specified pursuant to Buyer’s written instruction. Unless otherwise herein agreed, Buyer will not accept COD shipments. Seller shall notify Buyer immediately of any delay in delivery or shipment. Shipments in greater or lesser quantity than ordered may be returned at Seller’s expense unless written authorization is issued by Buyer. If Seller’s deliveries fail to meet schedule, Buyer, without limiting its other rights or remedies, may either direct expedited delivery at Seller’s expense or cancel all or part of this order. Goods which are delivered in advance of schedule are delivered at the risk of Seller and may, at Buyer’s option, (a) be returned at Seller’s expense for proper delivery, (b) have payment therefor withheld by Buyer until the date that goods are scheduled for delivery, or (c) be placed in storage for Seller’s account until delivery dates specified herein. All articles ordered shall be packed by Seller in suitable containers for protection in shipment and storage. Prices set forth in this order include all charges for Seller’s packing and crating. Seller must pay transportation charges both ways on rejected material or equipment.
- ADVANCE MANUFACTURE Seller shall not manufacture or purchase or hold Buyer in any way accountable for purchase of raw materials in advance of its normal flow time or deliver any articles in advance or the delivery schedule set forth in this order or as modified by separate delivery schedule without Buyer’s written permission.
- IDEMNITY Seller will indemnify and hold Buyer harmless against any liability, penalty loss, damage, expense, actions or causes of action resulting from personal injury, death or property damage arising from or in connection with Seller’s performance of this order.
- ASSIGNMENT & SUBCONTRACTING Seller will not assign or subcontract (in whole or in part) this order without Buyer’s written consent.
- INSPECTION Articles ordered are subject to final inspection and approval by Buyer at its plant. Such final inspection and approval shall not be conclusive as regards latent defects, fraud, or such gross mistakes as amount to fraud and shall not be deemed to alter or affect the obligations of Seller or the rights of Buyer under the clause hereof entitled “WARRANTY.”
- WARRANTY Seller warrants that the goods and services furnished under this order: (a) shall be free of any defect in design, workmanship and material, and shall be merchantable and fit for the ordinary purposes for which such goods are intended; (b) shall be free from defects of title; (c) shall be of the kind and quality described in the specification, drawings, description or samples furnished; and (d) are produced and supplied in compliance with all applicable laws, statutes, rules, regulations and orders of the United States, or of any state or political subdivision thereof, including, but not limited to those pertaining to labor wages, hours and conditions or employment. This warranty shall run to Buyer, its customers, and users of Buyer’s products.
- PATENT IDEMNITY Seller warrants that the goods and services supplied hereunder do not and will not infringe on any United States or foreign patent, trademark, or copyright. In case such goods or services now or in the future constitute patent, copyright or trademark infringement, Buyer may, at its sole option, pursue any remedy or remedies available at law or in equity, including, without limitation, requiring Seller to either procure for Buyer the right to continue using such goods, modify them so that they become non-infringing or remove them and refund the total purchase price thereof. Seller agrees to indemnify and save harmless Buyer and its customers from and against any and all liability, loss, damage, costs, or expense of whatsoever nature or character including reasonable attorney’s fees whether incurred defending the claim or when enforcing Buyer’s rights of indemnity, arising out of or occasioned by any claim or suit for damages, injunction or other relief, on account of the furnishing or use of any article, material, tool, appliance, method or process protected by patents, trademarks or copyrights of the United States, in performance of this order. Seller shall, at Buyer’s request, but at Seller’s expense, assume the defense of such claim, suit, or process.
- REPRODUCTION RIGHTS Buyer does not grant or convey to Seller, by virtue of this order, any reproduction right in or to articles called for hereunder, or any right to use designs, drawings, or other information belonging to Buyer or its customers or supplied by or on behalf of Buyer for use in the performance of this order, in the production, manufacture or design of any articles for anyone other than Buyer.
- 12. CANCELLATION Buyer may terminate this order at any time, in which event if there has not been a breach by Seller, it may pay to Seller the proportionate part of the purchase price representing goods previously delivered and accepted. Acceptance of any portion of the goods ordered shall not bind Buyer to accept any future shipment nor deprive Buyer of the right to revoke acceptance and return previously delivered goods, nor waive its right to reject future deliveries. Seller shall have no right to substitute for returned or rejected goods without Buyer’s written instructions and agreement. Buyer shall not be liable for any consequential or incidental damages or the alleged loss under any claim for anticipated profits on the unfinished or unshipped portion of goods. Buyer expressly reserves all rights and remedies entitled to it under law or in equity.
- ADVERTISING Seller shall not, without first obtaining the written consent of Buyer, in any manner, advertise or publish the fact that Seller has contracted to furnish Buyer the material herein ordered, and for failure to observe this provision, Buyer shall have the right to terminate this without any obligations to accept deliveries after the date of termination or make further payment except for completed articles delivered prior to termination.
- CONFIDENTIALITY The parties acknowledge that in the course of this engagement they will have access to and be in possession of Confidential Information of the other. “Confidential Information,” as used herein, shall mean information regarded by the disclosing party as confidential, including information relating to is past, present, or future research, development or business affairs and any proprietary products, materials or methodologies. Each party shall hold in confidence, in the same manner as it holds its own Confidential Information of like kind, all Confidential Information of the other to which it may have access hereunder. Access to Confidential Information shall be restricted to those of the party’s personnel with a need to know and engaged in a permitted use.
- LIMITATION OF LIABILITY Under no circumstances shall Buyer be liable for any anticipated profits or for incidental or consequential damages.
- MISCELLANEOUS Seller may not assign its rights hereunder or interest herein without the prior written consent of Buyer. These terms and conditions of sale shall be binding upon and inure to the benefit of Buyer and Seller, their successors and permitted assigns. This contract shall be governed by and construed under the laws of the State of Ohio, without regard to conflicts of laws principles thereof. No waiver by either party of any breach of these conditions shall constitute a waiver of any other breach. If any provision hereof is held to be invalid or otherwise unenforceable for any reason, all other terms and remaining conditions will continue to be in force.
December 11th, 2008
{00446567.DOC;1}
The following General Terms and Conditions of Sale are applicable to the sale of all Goods supplied or services rendered by Cast Nylons Co., Ltd., an Ohio corporation (“Seller”), to any purchaser thereof (“Buyer”). All orders are subject to approval by Seller at its offices in Willoughby, Ohio. Buyer’s order shall not be binding upon Seller unless and until such order is accepted by Seller in writing. Upon Seller’s acceptance of Buyer’s order, the terms and provisions set forth herein shall constitute the entire agreement between Buyer and Seller and no statement, correspondence, sample, or other terms shall modify or affect the terms hereof. No course of prior dealings between the parties or usage in the trade shall be relevant to supplement or explain any term used in this Agreement. No waiver or alteration of terms herein shall be binding unless agreed to in writing and signed by both parties. No modification or waiver of any of these conditions of sale shall be binding upon Seller unless approved by Seller in writing. Any conflicting warranties, terms and conditions in the purchase order or any other Buyer’s document are specifically rejected by Seller.
- PRICE; PAYMENT All prices are F.O.B. Seller’s plant, Willoughby, Ohio unless otherwise specifically set forth on the face side hereof. Invoices for Goods and services shall be due and payable net thirty (30) days from date of invoice. Prices stated are subject to change without notice in the event of: (a) alterations in specifications, quantities, designs, or delivery schedules; (b) increases in the cost of fuel, power, material, supplies, or labor; or (c) foreign or domestic legislation enacted by any level of government, including tax legislation, which increases the costs of producing, warehousing, or selling the Goods, as defined herein below, purchased hereunder. No discount will be allowed unless specifically set forth on the face side hereof. Buyer agrees to pay a delinquency charge of 1-1/2% per month, or if such rate shall exceed the maximum rate allowed by applicable law, then a delinquency charge calculated at such maximum rate, on the outstanding balances not paid when due, from the date such balances were due until payment with respect thereof is made in full. Until the purchase price and all other sums due pursuant hereof are paid in full, Seller retains a security interest in the materials described on the face hereof (herein sometimes referred to as “Goods”) and in all proceeds of said Goods. Buyer shall execute financing statement(s) on request and irrevocably authorizes Seller to execute and file same.
- WARRANTY Seller warrants Goods manufactured by it will be free from defects in material and workmanship for sixty (60) days following the date of shipment. If any of the Goods are found by the Seller to be defective, such Goods will be replaced at Seller’s cost. The parties hereto expressly agree that Buyer’s sole and exclusive remedy against the Seller shall be for the replacement of defective Goods as provided herein. The sole purpose of this stipulated exclusive remedy shall be to provide the Buyer with free replacement of the defective Goods in the prescribed manner. Notwithstanding the foregoing warranty, Seller makes no representation or warranty, express or implied, including those of merchantability or fitness for any purpose or any other express warranties or representations, relating or pertaining to Goods sold or services performed hereunder. Further, Seller shall not be liable for any liability attributable, in whole or in part, to materials, parts or components manufactured by third parties which are incorporated into the Goods based on specifications provided by Buyer. No affirmation of Seller, by words or action, other than as set forth in this section 2 shall constitute a warranty. Goods which may be sold by Seller, but which are not manufactured by Seller are not warranted by Seller, but are sold only with the warranties, if any, of the manufacturers thereof. This warranty does not cover labor or other costs or expenses to move, remove or install any defective or replaced Goods, Seller’s modification (including but not limited to use of unauthorized parts or attachments), or adjustments or repair performed by anyone other than Seller or one of Seller’s authorized agents. Any claim by Buyer with reference to the Goods sold hereunder shall be deemed waived by the Buyer unless submitted in writing to Seller within the earlier of: (a) thirty (30) days following the date Buyer discovered or by reasonable inspection should have discovered any claimed breach of the foregoing warranty; or (b) ninety (90) days following the date of shipment. Any cause of action for breach of the foregoing warranty shall be brought within one year from the date the alleged breach was discovered or should have been discovered, whichever occurs first.
- LIMITATION LIABILITY Seller’s liability for its goods under all theories of liability shall be limited to replacing those found by seller to be defective, or at Seller’s option, to refunding the purchase price of such goods. At Seller’s request, Buyer will send, at Buyer’s sole expense, any allegedly defective goods to the plant of Seller which manufactured them.
- DISCLAIMER OF CONSEQUENTIAL DAMAGES In no event shall Seller be liable for consequential damages arising out of or in connection with this agreement, including without limitation breach of any obligation imposed on Seller hereunder or in connection herewith. Consequential damages for purposes hereof shall include, without limitation, loss of use, income or profit, or losses sustained as the result of injury (including death) to any person, or loss or damage to property (including without limitation property handled or processed by the use of the Goods). Buyer shall indemnify seller against all liability, cost, or expense, which may be sustained by Seller because of any such loss, damage, or injury.
- ACCEPTANCE Upon Buyer’s receipt of shipment, Buyer shall immediately inspect the Goods. Unless Buyer provides Seller with written notice of any claim for shortages of or defects in the Goods within forty-eight (48) hours after receipt of shipment such Goods shall be deemed finally inspected, checked, and accepted by Buyer.
- TRANSPORTATION; TITLE & RISK OF LOSS Unless Seller notifies Buyer to the contrary, Buyer will select the means of transportation and arrange for shipment of goods. Title to any Goods sold and risk of loss of such Goods passes to Buyer upon delivery by Seller to carrier at Seller’s facility. Seller shall not be held responsible for loss or damages or excess cost resulting from the means of shipment or routing used or for any other losses or damages arising while in transit and Buyer agrees to make any claim therefor directly against the carrier. [The cost of transportation (including, but not limited to, air freight and overnight delivery service) will be borne by Buyer.]
- CREDIT TERMS All orders and shipments shall, at all times, be subject to the approval of Seller’s Credit Department. The Seller reserves the right of declining to make shipment whenever, for any reason, there is doubt as to Buyer’s financial responsibility, and Seller shall not in such event be liable for breach or nonperformance of contract completely or in part.
- TAXES Unless otherwise specifically provided on the face thereof, the price for the Goods purchased is net and does not include sales, use, excise, or similar taxes, whether federal, state, or local. The amount of any such taxes applicable to the Goods shall be paid by Buyer in the same manner and with the same effect as if originally included in the purchase price.
- PACKAGING Prices stated are based on Seller’s standard packaging. Seller reserves the right of packaging the Goods in pallets, bulk, or individual cartons. Packaging will be standard commercial package and acceptable to commercial carrier. Special customer packaging will be furnished only when specified and so stated herein, and the cost thereof shall be borne by Buyer.
- DELAYS Unless expressly specified to the contrary, Goods will be shipped as soon as possible. However, all shipping dates are approximate, are based upon current availability of materials, present production schedules, and prompt receipt of all necessary information. Seller will not be liable for any damage, loss, fault, or expenses arising out of delays in shipment or other nonperformance of this Agreement caused by or imposed by: (a) strikes, fires, disasters, riots, acts of God; (b) acts of Buyer; (c) shortages of labor, fuel, power, materials, supplies, transportation, or manufacturing facilities; (d) governmental action; (e) subcontractor delay, or (f) any other cause or condition beyond Seller’s control. In the event of any such delay or nonperformance, Seller may at its option, and without liability, cancel all or any portion of this Agreement and/or extend any date upon which any performance hereunder is due.
- TERMINATION, CANCELLATION & CHANGES Orders cannot be terminated, cancelled or modified, or shipment differed after acceptance of Buyer’s order by Seller, except with Seller’s written consent and subject to conditions then agreed upon which shall indemnify Seller against liability and expense incurred and commitments made by Seller and which shall provide for profit on work in process and contract value of products or parts completed and ready for shipment.
- PATENTED PROCESS The purchase of the Goods does not entitle Buyer to employ the same with any patented process owned by Seller or others.
- PATENT INFRINGEMENT Except in the case of articles, materials and designs furnished or specified by Buyer, Seller, at its own expense shall defend any suit brought against Buyer on the ground that use of the Goods furnished hereunder by Seller infringes any United States Letter Patent existing on date of this agreement, and shall pay the amount of any judgment that may be awarded against Buyer in any such suit, provided and upon condition that Buyer shall have made all payments due under this agreement and shall: (a) promptly deliver to Seller all infringement notices and other papers received by or served up on Buyer; (b) permit Seller to take complete charge of the defense of such suit to compromise the same, if deemed advisable; and (c) assist in every reasonable way in the conduct of such defense. In the event that Buyer shall be enjoined by a court of competent jurisdiction from which no appeal can be taken from using the Goods for the intended purpose on the ground that use of the Goods infringes any such United States patent, or if it is established to Seller’s satisfaction, upon due investigation, that use of the Goods infringes any such United States Patent, Seller at its option, may either: (w) procure for Buyer a license to continue using the Goods, (x) modify the Goods so as to make them non-infringing without materially impairing its performance; (y) replace the Goods with goods which are substantially the equivalent but non-infringing; or (z) remove the Goods from Buyer’s plant, in which event Seller shall refund to Buyer the purchase price less depreciation at the rate of 20% per year until such time as the purchase price has been repaid in full. The foregoing sets forth Seller’s entire liability to Buyer for patent infringement based on the possession and use of the Goods by Buyer. Seller shall have no obligation whatsoever arising out of any patent infringement claims directed to a process or method.
- ADDITIONAL CHARGES If substitute or additional Goods or repair parts are purchased by Buyer from Seller, the terms and conditions of this contract shall be applicable thereto, the same as if such substitute or additional Goods or repair parts had been originally purchased hereunder.
- GENERAL CONDITIONS
- No agent, salesperson or other party is authorized to bind Seller by any agreement, warrant, statement, promise, or understanding not herein expressed.
- The sale of Goods pursuant to this order shall be governed by the laws of the State of Ohio.
- In addition to the rights and remedies conferred upon Seller by law, Seller shall not be required to proceed with the performance of any order or contract if Buyer is in default in the performance of any order or contract with Seller, and in case of doubt as to Buyer’s financial responsibility, shipments under this order may be suspended or sent sight draft with bill of lading attached by Seller.
- Any clerical errors are subject to correction by Seller.
- No delay or omission by Seller in exercising any right or remedy provided for herein shall constitute a waiver of such right or remedy and shall not be constituted as a bar to or a waiver of any such right or remedy on any future occasion.
- The provisions of this contract are severable. In the event that any such provision or portion thereof shall be deemed invalid or unenforceable to any extent, such provision shall be enforceable to the maximum extent permitted, if any, and the other provisions of this contract shall remain in full force.
- This contract shall be binding upon and shall inure to the benefit of the successors, and assigns of Buyer and Seller, provided, however, that Buyer may not assign or transfer this contract in whole or in part, except upon the prior written consent of Seller.
December 11th, 2008
