Conditions of Sale

  1. Each delivery shall stand as a separate sale and is subject to credit arrangements or to receipt of cash. If payment is not made in accordance with terms, or if Seller shall have any doubt at any time as to Buyer’s financial condition, Seller may withhold delivery of the material until the Seller receives adequate assurance that Buyer is financial solvent.
  2. Buyer grants Seller a security interest in the goods described on the front of the invoice and in the proceeds thereof, to secure payment of the purchase price. A copy of the invoice may be filed by Seller at any time as a financing statement to perfect Seller’s security interest.
  3. The quantity delivered hereunder may vary by ten percent (10%) more or less from the quantity ordered. Buyer accepts such excess or diminution.
  4. All orders or contracts are subject to and conditioned upon (a) written acceptance by Seller and are not binding on Seller unless or until; (b) Buyer’s acceptance of Seller’s Customer Requirements Manual (“CRM”) incorporated by reference herein. The CRM includes but is not limited to terms that will govern quality, packaging, freight, and labeling.
  5. Seller shall not be liable for any loss or damage resulting from the handling or use of the material shipped, whether in the manufacturing process or otherwise.
  6. Deliveries may be suspended, without liability, in case of an act of God, war, riots, fire, explosions, flood, strike, lock-out, injunction, inability to obtain fuel, power, raw materials, labor, containers or transportation facilities, accident, breakage of machinery or apparatus, governmental action, national defense requirements or other causes beyond the control of Seller, preventing the manufacture or shipment of material upon which the manufacture of the material specified in this order is dependent. Quantities affected by said suspension may be eliminated from the order without liability to Seller, but the order will remain otherwise unaffected.
  7. Claims on account of weight will be allowable only (1) if for an amount in excess of one percent (1%) or more of the entire contents of all shipments (excluding shipments by bulk rail car and truck in which case claims shall be allowable only if for an amount in excess of one percent more of the entire contents); (2) if made within ten (10) days after receipt at destination, and (3) if supported by certified bulk scale tickets in the event of bulk shipments.
  8. If Seller is unable to supply the total demand for material specified herein, Seller may distribute its available supply among any or all purchasers, as well as departments and divisions of Seller on such basis as it may deem fair and practical, without liability for any failure of performance which may result therefrom.
  9. Buyer agrees that if this contract covers material that must necessarily be manufactured especially for Buyer or not customarily carried in stock by Seller and said contract is suspended or terminated for any reason beyond the Seller’s control, Buyer shall take delivery of and pay for as much of the material as has been completed together with that still in process on the date notice of the termination and/or suspension is received by Seller. If Buyer for any reason cannot accept delivery of such material, Buyer shall pay for same as though delivery had been made and Seller may store such material for Buyer’s account at Buyer’s expense.
  10. Seller warrants that all material sold is free from defects in composition and workmanship and that the materials conform to product specifications or to product data sheets which Seller shall provide to Buyer upon request. SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Notice of defective or nonconforming material must be made in writing within ten days of delivery. Failure to give written notice shall constitute a waiver by Buyer of both the right to revoke acceptance and of all claims or defenses based on the quality of the material. Defective material may not be returned until authorized in writing by Seller and only upon specific instructions given by Seller. Seller shall not be liable for any loss, damage or expense directly or indirectly arising from the use of the material or from any other causes. Buyer assumes all risk and liability resulting from use of the material covered by this order, whether used independently, or in combination with other products. Seller shall not be liable for special, indirect, incidental or consequential damages, including without limitation lost revenues and profits, even if it has been advised of the possibility of such damages. Buyer shall defend, indemnify and hold Seller harmless from any claims arising from Buyer’s resale of the materials. The Seller is purporting to sell only such right, title and interest as it has in the material. The statute of limitations applicable to all claims arising under this agreement shall be one (1) year from the date the claim accrues.
  11. The Seller guarantees that, to the best of its knowledge, the material provided Buyer is produced and sold free of valid patent infringement claims, but does not guarantee that the use thereof, or the articles made therefrom by the Buyer along or in conjunction with materials will not infringe a patent.
  12. Seller, upon Buyer’s written request, may furnish to Buyer technical advice with reference to the use of the material sold hereunder, if and to such extent as Seller has such advice conveniently available. If any such advice, and that if any advice or assistance is furnished, it shall be given and accepted at Buyer’s risk, and Seller shall not be responsible or liable for the advice or assistance given or the results thereof.
  13. If Buyer should default: (a) Seller, in addition to all other remedies available to it at law and equity, may cancel the order or reduce the quantities to be delivered hereunder by giving notice to Buyer; (b) If Buyer shall be obligated to pay to Seller interest on any unpaid balance at the highest legal rate permitted and further shall be responsible to Seller for any costs or expenses, including attorney fees, in the enforcement of the provisions of these Conditions of Sale.
  14. The price quoted, unless otherwise specified on the face hereof, shall be immediately adjusted to equal any applicable lower or higher price announced by Seller. Any revised price shall apply only to shipments made on or after the effective date of the change in price.
  15. The Buyer shall reimburse the Seller for all taxes, excises or other charges which the Seller may be required to pay to any applicable governmental authority upon the sale, production, storage, or transportation of the material sold hereunder.
  16. No claim for damages of any kind, whether as to material delivered or for non-delivery of material, shall be greater in amount than the purchase price of the material in respect of which such damages are claimed. No charge or expense incident to any claims will be allowed unless approved by an authorized representative of Seller. No claim shall be allowable after the material has been processed in any manner.
  17. In the absence of agreement to the contrary, Seller shall designate the mode of transportation and carrier. Delivery shall be F.O.B. Seller’s warehouse. Seller shall deliver all material to a carrier for transportation to Buyer’s place of business, but all costs of transportation shall be borne by Buyer and all risks of loss shall pass to Buyer when the material is delivered to the carrier. If delivery is delayed by Buyer or by reason of any contingency referred to in item 6. hereof, the storage of the material for the account of Buyer shall constitute delivery. No liability is assumed by Seller for the acts or omission of the carrier.
  18. If any government action should place or continue limitations on the price provided for in this contract such that it would be illegal or against public or government policy for Seller to charge, assess or receive the full amount of such prices as determined by this contract, then Seller shall have the option (1) to terminate performance of the affected portion of the contract without liability for any damages, (2) to revise the contract subject to Buyer’s approval in order to most nearly accomplish the original intent or (3) to continue to perform under this contract subject to such reductions in prices as Seller may deem necessary to comply with such governmental action.
  19. This contract is not assignable or transferable by Buyer, in whole or in part, except with the written consent of Seller.
  20. Buyer agrees not to communicate or disclose to any person or entity, either directly or indirectly or under any circumstances or at any time, any knowledge or information whatsoever acquired by the Buyer during the period of this contract relating to or concerning Seller’s pricing information and/or other confidential information regarding the property, business affairs of Seller or any of its subsidiaries without the written consent of Seller and BUYER AGREES NOT TO UTILIZE OR MAKE AVAILABLE ANY SUCH KNOWLEDGE OR INFORMATION, EITHER DIRECTLY OR INDIRECTLY, IN CONNECTION WITH THE SOLICITING OF OR NEGOTIATIONS WITH ANY COMPETITOR OR CUSTOMER OF THE SELLER. THE PARTIES AGREE THAT DUE TO THE CONFIDENTIAL NATURE OF THE PRICING INFORMATION AS SET FORTH ABOVE, THAT IT WOULD BE IMPOSSIBLE TO DETERMINE THE EXACT DOLLAR AMOUNT OF THE DAMAGES SUSTAINED BY THE SELLER UPON DISCLOSURE OF THE BUYER AND THEREFORE UPON VIOLATION OF THIS PARAGRAPH BY BUYER, THE BUYER AGREES TO PAY TO SELLER THE AMOUNT OF $250,000.00 (TWO HUNDRED FIFTY THOUSAND DOLLARS) AS LIQUIDATED DAMAGES.
  21. This document contains all of the terms and conditions with respect to the sale and purchase of the material sold hereunder. These terms and conditions supersede any of previous date and no modification thereof shall be binding on Seller unless separately contracted in writing and agreed to by a duly authorized representative of Seller. SELLER OBJECTS TO THE INCLUSION OF ANY DIFFERENT OR ADDITIONAL TERMS proposed by Buyer in its acceptance of this contract and if they are included in Buyer’s acceptance, a contract for sale will result upon Seller’s terms stated herein, notwithstanding the inclusion of same by Buyer. No modification shall be effected by the acknowledgement or acceptance of purchase order forms stipulating different conditions. Unless Buyer shall notify Seller in writing to the contrary within three days after receipt of this document by Buyer, acceptance of the terms and conditions hereof by Buyer shall be indicated and, in the absence of such notification, the Buyer’s acceptance of the material shall be equivalent to Buyer’s assent to the terms and conditions hereof. Waiver of either party or any default by the other hereunder shall not be deemed a waiver by such party of any default by the other which may thereafter occur.
  22. This contract and performance hereunder and all lawsuits, arbitration, remedies, special proceedings, or other proceedings hereunder shall be construed, governed and enforced in accordance with, under and pursuant to the laws of the State of Michigan where it was made, and in any action, arbitration, remedies, special proceeding or any other proceedings that may be brought, arising out of, under, in conjunction with, by reason or in relation to this contract, the laws of the State of Michigan shall be applicable and shall govern to the exclusion of the law of any other forum, state or jurisdiction and any claim arising out of, in connection with, by reason of, or in relation to this contract shall be enforced, adjudicated, litigated or, on demand of the Seller, arbitrated in Michigan and the parties stipulate and consent to the jurisdiction of the Courts of the State of Michigan. To the extent any provision or clause in this agreement is prohibited by any law or is deemed unenforceable, such prohibition or unenforceability shall not invalidate any of the remaining provisions or clauses hereof.
  23. Buyer acknowledges reading, and agrees to be bound by the preceding Conditions of Sale, and agrees to and accepts all of the terms and conditions set forth herein.