GENERAL TERMS AND CONDITIONS OF SALE  

Unless otherwise agreed upon in writing, the following General Terms and Conditions of Sale (the “General Terms and Conditions”) are applicable to the sale of all products, metal, alloys, abrasives, personal property or services (the “Products”) by N.T. Ruddock Company or any of its divisions (“Seller”), to any purchaser thereof (“Buyer”).  These General Terms and Conditions are subject to any additional terms contained in any agreement, statement of work, amendment, addendum or other writing signed by Seller, and each such writing is deemed to incorporate these General Terms and Conditions as if fully set forth therein.  All orders are subject to approval by Seller at its corporate headquarters in Oakwood Village, OH.  Any amendment, waiver or other alteration of these General Terms and Conditions by Seller shall be effective only if made in a writing signed by a designated officer or director of Seller, and any attempt by Buyer to alter such terms and conditions with printed purchase orders, acknowledgments or similar documentation shall be void and of no force or effect.  Except as otherwise agreed to in writing by the Seller, any conflicting or additional terms and conditions of sale are expressly rejected by the Seller.

  1. Entire Agreement: These General Terms and Conditions, along with any agreement, statement of work, amendment, addendum or other writing signed by Seller, constitute a complete and exclusive statement of the agreement (“Agreement”) between Seller and Buyer with respect to, and shall exclusively govern, the sale of all Products by Seller to Buyer in connection with or as contemplated by the Seller’s written or oral proposals, quotations and sales to Buyer (any such item, written or oral, being a “Sale Order”) and/or Buyer’s written or oral purchase orders or similar form to Seller (any such item, written or oral, being a “Purchase Order”), and shall continue in effect until terminated in writing by Seller.  Transactions contemplated by this Agreement are “forward contracts” and Buyer and Seller are “forward contract merchants,” as those terms are used in the United States Bankruptcy Code, as amended.  In the event of a conflict between the terms and conditions contained in a Sale Order or final order acknowledgement and those contained in these General Terms and Conditions, the terms contained in a Sale Order or final order acknowledgement shall control.   Notwithstanding any different or additional terms or conditions contained in Buyer’s purchase order or other communication to Seller related to the Products, Seller accepts Buyer’s order only on the condition that Buyer expressly accepts and assents to these General Terms and Conditions.  Buyer’s order shall not be binding upon Seller unless and until such order is accepted by Seller in writing.  In the absence of Buyer’s acceptance hereof, Seller’s commencement of performance or Seller’s acknowledgement of Buyer’s Purchase Order shall not be construed as Seller’s acceptance of any of Buyer’s terms.  Any confirmation by Buyer that states different or additional terms shall operate as an acceptance of these General Terms and Conditions, but Seller hereby objects to and rejects such different or additional terms and any such different or additional terms shall be deemed to be material alterations and notice of objection to them is hereby given.  In addition, Buyer’s acceptance of any Products shall be deemed to be acceptance of all of these General Terms and Conditions.  Seller hereby objects to any additional, contradictory or different terms contained in any initial or subsequent Purchase Order from Buyer pertaining to the Products, including, but not limited to, any indemnification or compliance warranty provisions.  Any notice by Buyer objecting to these General Terms and Conditions must be in writing separate from any Purchase Order.  Seller’s failure to object specifically to provisions contained in any Purchase Order shall not be deemed a waiver of the provisions contained in these General Terms and Conditions.
  2. Acceptance of General Terms and Conditions: Buyer’s assent to the General Terms and Conditions may be expressed either by written acceptance or by failure to object in writing to the General Terms and Conditions within five (5) days of receipt thereof.  Any such written objections should accompany, but be separate from, the Purchase Order submitted to the Seller.
  3. Price & Taxes: Unless otherwise agreed, the price of Products shipped hereunder shall be paid in full by Buyer, and prices shall be an amount equal to Seller’s price on the date of shipment plus applicable Federal, State and local transactional costs and expenses, including, but not limited to, all freight, taxes, duties, tariffs, premiums or other additional costs imposed by reason of this sale.
  4. Price Changes: If a price is specified, it may be changed by Seller on the first day of any month by written notice sent to Buyer not less than twenty (20) days prior to the effective date of change.  Unless Buyer gives Seller written notice of objection to such change at least seven (7) days prior to the effective date of the change, Buyer shall be deemed to have accepted such change. If Buyer gives such notice of objection and Buyer and Seller fails to agree on such change prior to the effective date thereof, the Agreement and the obligations of Seller and Buyer thereunder shall terminate with respect to the unshipped portion of the Products covered thereby.  In the event of any governmental action or request which prevents Seller from making a price increase or continuing any price already in effect, Seller may terminate the Agreement by giving Buyer thirty (30) days prior written notice of termination.
  5. Drawback: The price of Products sold for export does not include import duty, if any, and Seller reserves the right to claim duty drawback.  Buyer agrees to assist in Seller’s efforts to obtain such drawback and to furnish Seller with all necessary documents and, if Products are transferred for export, to require exporter to furnish proof of such exportation.
  6. Payment: For purpose of payment, each shipment and invoice therefore shall be a separate sale.  Unless otherwise agreed, full payment is due and payable no later than net thirty (30) days from date of invoice (“Due Date”).  All payments shall be made in U.S. dollars, unless otherwise agreed.  Buyer’s outstanding unpaid balances shall be subject to a finance charge at the rate specified on the invoice until paid in full (or such lower rate as may be the maximum permitted by law).  Buyer shall also pay Seller’s cost of collection (including reasonable attorneys’ fees).  Payments received may be applied by Seller, in its sole discretion, against any obligation owed by Buyer to Seller.  Seller may refuse or delay shipments if Buyer fails to pay promptly any payments due Seller.  If Seller shall, in its sole discretion, deem itself to be insecure regarding Buyer’s ability to fulfill the terms of payment herein specified, whether due to Buyer’s financial condition or any other reason, Seller may by notice to Buyer (i) require full or partial payment in advance of delivery or (ii) reduce, eliminate or otherwise modify the credit terms.
  7. Purchase Money Security Interest: To secure the complete and timely payment and performance of all Buyer’s obligations under this Agreement, including the complete and timely payment of the purchase price of the Products sold under this Agreement, Seller hereby reserves, and Buyer hereby grants Seller a purchase money security interest in all Products whether constituting equipment, inventory, fixtures, general intangibles, and/or any other form of personal property, including all accessions thereto and replacements thereof, all products and proceeds thereof, including without limitation, insurance proceeds. A copy of the invoice(s) covering the Products may be filed with appropriate authorities at anytime as a financing statement to perfect Seller’s security interest, provided further that, Buyer hereby authorizes Seller to prepare, execute, issue, and file such UCC-1 financing statements, continuation statements, amendments, and any instruments or third party notices that Seller may reasonably require to perfect Seller’s security interest. Seller shall have all the rights and remedies of a secured party under the Uniform Commercial Code, which remedies shall be cumulative and not exclusive.
  8. Setoff and Recoupment: Seller shall have the right at any time and without notice, to recoup or setoff (which ever may apply) any liability or obligation of Buyer to Seller or any of Seller’s affiliated companies against any liability or obligation of Seller to Buyer.  Under no circumstances will Buyer have a right of setoff or recoupment against Seller without prior written notice to Seller and without at least five (5) business days in which Seller may cure or relieve itself of its liability to Buyer.
  9. Termination: Time is of the essence and, in addition to any other rights, Seller shall further have the right, at its option, to terminate this Agreement without notice to Buyer if (i) payment is not made on or before the Due Date, (ii) Buyer becomes insolvent, or (iii) Buyer’s ability to pay debt in the normal course of business otherwise becomes impaired.
  10. Shipments; Shipment Quantity; Shortages: With respect to each shipment of Products, Buyer shall give Seller one (1) business day’s advance notice, which notice shall include date of delivery and shipping instructions.  Seller shall not be required to deliver in any month more than the monthly quantity specified in the Agreement, or if no monthly quantity is specified, more than the pro-rata amount of the maximum quantity specified, nor shall Seller be bound to tender delivery of any quantities for which Buyer has not given one (1) business day’s advance notice.  If Buyer fails to accept delivery of the stipulated or minimum pro-rata quantity in any month, or fails to give such notice, Seller may, at its option, in addition to its other rights and remedies, cancel such deliveries or parts thereof.  All Products shipped under this Agreement shall be subject to Seller’s usual tolerances and variations as to quantity.  Unless Seller receives written notification of variances in quantity within twenty (20) days of the invoice date, the invoiced quantity shall be conclusive.
  11. Delivery; Risk of Loss: Unless otherwise agreed, Products are shipped freight collect or collect upon arrival.  Title to and risk of loss shall pass to Buyer upon delivery of Products to carrier.  Choice of carrier and shipping method and route shall be at the election of Buyer and shall be Buyer’s sole responsibility.  Seller shall have the right to deliver all Products covered hereby at one time or in partial shipments from time to time, within the agreed time for delivery. Delivery dates are approximate and Seller shall not be liable for damages or costs which arise in connection with the delivery of Products after the date stated on any Sale Order, Purchase Order or other document.  Delivery dates are further dependent upon the prompt receipt by Seller of all information required by Seller to proceed with work immediately and without interruption.  Buyer shall pay all freight, handling, delivery, special packing and insurance charges for shipments of Products.  All such charges shall be the Buyer’s sole responsibility and shall be charged to the Buyer’s account.
  12. Acceptance of Products: Upon receipt of Products, Buyer agrees to immediately inspect and/or test the Products.  Such inspection or testing shall be completed promptly and in no event later than ten (10) days after delivery of the Products to carrier.  The Products shall be deemed accepted by Buyer unless Buyer provides Seller, within ten (10) days of the end of the initial inspection period, a written notice specifying all defects or discrepancies in the quality or quantity of Products.  Buyer shall permit Seller to inspect any damaged or otherwise nonconforming Products.
  13. Cancellation: Once an order is accepted by Seller, it may not be cancelled or changed by Buyer, nor shall Buyer be entitled to delay shipment or performance, except with the written consent and upon terms and conditions approved by Seller in writing.  If Seller consents to the cancellation of an order for Products pursuant to the foregoing sentence, Buyer shall pay to Seller within thirty (30) days of such cancellation, all costs and expenses incurred by Seller in connection with Buyer’s order (including without limitation, any restocking fee and reasonable cancellation charges) of an amount not less than fifteen percent (15%) of the cancelled order.  Any extra cost incurred by Seller to meet Buyer’s request for rescheduling/cancellation will be Buyer’s responsibility.
  14. Force Majeure: Seller shall not be liable for delays in delivery or for failure to perform, and performance shall be excused, if such failure is due to causes beyond the reasonable control of Seller or its subcontractors, including, but not be limited to, acts of God, acts or omissions of Buyer, acts of government, including but not limited to civil or military authorities, fire, strikes, power surges or outages, embargos, sanctions, epidemics, quarantine restrictions, flood, natural disasters, riot, war, delays in transaction or inability to obtain necessary labor, materials or supplies or any cause which renders Seller’s performance commercially impractical under Section 2-615(a) of the Uniform Commercial Code, as amended.
  15. Limited Warranty; Exclusive Remedy: Seller warrants that the Products will conform to Seller’s specifications, as in effect at the time of shipment, and are free from defects in material and workmanship for a period of thirty (30) days from the date of shipment.  Seller’s sole obligation under this warranty shall be at its option to repair or replace any Products or part thereof which proves to be other than as warranted; provided that written notice of the alleged defect shall have been given by Buyer, within ten (10) days after discovery thereof, to Seller prior to thirty (30) days from the date of shipment to Buyer.  This warranty does not extend to any Products or parts thereof which have been installed, operated, maintained, repaired or altered improperly or which have been the subject of misuse, accident or neglect; nor does the warranty apply to normal wear and tear resulting from use of the Products.  Seller also warrants that it will convey good title to the Products and that such Products will be delivered free of any security interest or other lien or encumbrance. EXCEPT AS SET FORTH IN THIS SECTION, SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS. SELLER DISCLAIMS ANY WARRANTY WITH RESPECT TO THE MERCHANTABILITY OF THE PRODUCTS OR THE FITNESS OF THE PRODUCTS FOR ANY PARTICULAR PURPOSE OR USE OF BUYER AS WELL AS ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS ARISING BY ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  SELLER FURTHER DISCLAIMS ANY WARRANTY WITH RESPECT TO THE CONFORMANCE OF THE PRODUCTS WITH ANY REQUIREMENTS OR SPECIFICATIONS PROVIDED BY BUYER, UNLESS THE CONFORMANCE WITH SUCH REQUIREMENTS OR SPECIFICATIONS HAS BEEN SPECIFICALLY AGREED TO BY SELLER IN WRITING. Any cause of action for breach of the foregoing warranty shall be brought within one (1) year from the earlier of: a) the date the alleged breach was discovered; b) the date the alleged breach should have been discovered; or c) thirty (30) days from the date of shipment.  BUYER’S SOLE REMEDY IN THE EVENT OF A BREACH OF THE FOREGOING WARRANTIES IS THE REPAIR OR REPLACEMENT OF THE AFFECTED PRODUCT BY SELLER UPON RETURN OF THE PRODUCT, TRANSPORTATION CHARGES PREPAID TO SELLER.  SELLER SHALL ASSESS A PRO-RATA CHARGE TO BUYER FOR USE OF THE PRODUCT PRIOR TO ITS RETURN.
  16. Limitation of Liability: IN NO EVENT SHALL SELLER’S LIABILITY ARISING IN CONNECTION WITH OR UNDER THIS AGREEMENT (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT LIABILITY, MISREPRESENTATION, FRAUD, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LAW) EXCEED THE PURCHASE PRICE OF THE PRODUCTS.
  17. Disclaimer of Consequential Damages: IN NO EVENT SHALL SELLER BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION, BREACH OF ANY OBLIGATION OR WARRANTY IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH.  “CONSEQUENTIAL DAMAGES” FOR PURPOSES HEREOF SHALL INCLUDE WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT, DAMAGES, EXPENSES, OR LOSSES SUSTAINED AS THE RESULT OF INJURY TO ANY PERSON, OR LOSS OF OR DAMAGE TO ANY PROPERTY (INCLUDING, WITHOUT LIMITATION, PROPERTY HANDLED OR PROCESSED THROUGH THE USE OF THE PRODUCTS), DAMAGES OR LOSSES RESULTING FROM CLAIMS OF OTHER PERSONS AGAINST BUYER, OR DAMAGES OR LOSSES SUSTAINED AS THE RESULT OF WORK STOPPAGE OR CAUSED BY OR RESULTING FROM THE USE OF DEFECTIVE OR NONCONFORMING PRODUCTS OR FROM DELAY IN THE DELIVERY OF PRODUCTS.
  18. Buyer’s Indemnity: Buyer shall indemnify Seller, Seller’s officers, directors, employees and agents against all liability, cost or expense that may be sustained by Seller on account of, or arising from, the Agreement or the sale or transfer of the Products.  Buyer shall further indemnify, defend and hold Seller and its directors, officers, employees, agents, suppliers, parents, affiliates, subsidiaries, successors and assigns harmless from and against any and all fines, penalties, suits, actions, claims, liabilities, judgments, losses, damages, costs and expenses (including attorneys’ fees) resulting or arising from (a) Buyer’s negligence or willful misconduct, (b) Buyer’s use, sale, handling, storage, or disposal of the Products, or any product or waste derived therefrom, (c) Buyer’s discharge or release of the Products, or any product or waste derived therefrom into water, onto land or into the air, (d) Buyer’s exposing any person (including Buyer’s employees) to the Products, or any product or waste derived therefrom, including failure to warn of such exposure, (e) the transportation of the Products to Buyer after tender of the Products by Seller to the carrier at the shipping point, or (f) any liability or cost arising out of any claim for the infringement of any patent or other rights which are or may be asserted against Seller because of the design, nature, structure or use of any goods manufactured by Buyer or modified at the request of Buyer.  The foregoing shall apply, without limitation, to injury to person (including death) or damage or harm to property or the environment. This indemnity shall not apply to any fine, penalty, suit, action, claim, liability, judgment, cost or expense caused solely by Seller’s negligence or willful misconduct, but shall apply where there is concurrent negligence or willful misconduct on the part of Seller and Buyer in proportion to buyer’s negligence or willful misconduct.
  19. Compliance with Laws: Any provision required to be incorporated into a contract of this type by any applicable Federal, State, or local law, ordinance or governmental rule, regulation, order or other governmental requirements shall be deemed to be incorporated herein.  Buyer represents and warrants that Products will not be used, resold, transferred, exported or reused in any way by Buyer in violation of any laws, regulations of any Federal, local, State or other governmental entity including export/import controls imposed by the U.S. Government (collectively, the “Regulations”).  In the event Buyer knows or is aware of any Regulation that would adversely impact the transaction(s) contemplated by a Sale Order and/or Buyer’s Purchase Order, Buyer shall immediately advise Seller of the same.  If the Seller, in its sole discretion, determines that the effect of the Regulations is a material increase in Seller’s risk with respect to such transaction, the Seller may, without cost, liability or penalty of any kind, withdraw a Sale Order and/or revoke its acceptance of Buyer’s Purchase Order.
  20. Disputes: Any controversy or dispute between Seller and Buyer arising out of or in any way related to this Agreement not otherwise resolved between Seller and Buyer shall be resolved in a court sitting within the State of Ohio, Cuyahoga County, and Buyer consents and agrees that jurisdiction and venue for such proceedings shall lie exclusively with such courts.  No action, regardless of form, arising out of, or in any way connected with, Products may be brought by Buyer more than one (1) year after the earlier of:  (a) the date the alleged breach was discovered;  (b) the date the alleged breach should have been discovered; or  (c) thirty (30) days from the date of shipment.
  21. Early Termination: Seller may immediately terminate this Agreement without notice to Buyer if Buyer:  (i) makes an assignment for the benefit of creditors, (ii) becomes insolvent or is otherwise unable to pay its debts in the ordinary course of business, or (iii) is the subject of any voluntary or involuntary proceedings in bankruptcy, or under any other insolvency or similar law, or for corporate reorganization or for receivership.
  22. General: This Agreement shall be governed by the laws of the State of Ohio, without regard to conflicts of laws principles thereof.  Buyer may not assign its right under or interest in the Agreement without the prior written consent of Seller.  The Agreement shall be binding upon and inure to the benefit of Buyer and Seller, their successors and permitted assigns.  Seller shall have the right, at its sole option, to assign or subcontract any of its rights or duties hereunder.  No waiver by either party of any breach of these General Terms and 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.  Any clerical errors are subject to correction.  Buyer shall reimburse Seller for reasonable attorney’s fees necessarily incurred in order to enforce this Agreement or any provision hereof or to secure cost and/or damages pursuant to any other remedy, legal or equitable, arising from Buyer’s breach hereof.

All Proposals and Purchase Orders are subject to the warranties, warranty disclaimer, terms and conditions appearing herein and Buyer agrees to be bound thereby.  No modifications or additions thereto shall be binding upon Seller unless expressly consented to in writing in either the Proposal or Purchase Order acknowledgment.  Any conflicting warranties, terms and conditions in the order or any other Buyer’s documentation are specifically rejected by the Seller.


CONTRACT GENERAL TERMS AND CONDITIONS OF PURCHASE

  1. Acceptance of Contract. This Purchase Order becomes a contract subject to the terms and conditions set forth herein when accepted by acknowledgment or commencement of performance by Seller.  No change in, modification of, or revision of this order or the terms and conditions hereof, shall be valid unless agreed to in writing by N.T. RUDDOCK COMPANY or any of its divisions hereinafter called the “Buyer”.  The failure of Buyer to reject orally or in writing, any conflicting or contradictory terms contained in any document forwarded by Seller to Buyer subsequent to this Purchase Order shall not be deemed to be an assent to such terms.
  2. Prices. If a specific price for goods has been quoted to Buyer by a representative or agent of Seller or if a price previously established by Seller has been set forth for the goods on the face of an order, such price shall be the price of the goods and the full extent of Buyer’s liability for the goods, unless a different price is agreed to in writing by Buyer.  Seller warrants that the prices for the goods are the same or more favorable than those currently extended to any other customer for the same or like articles in equal or smaller quantities.  In the event Seller establishes or offers a lower price for the sale of such articles in such quantities, either generally or for any one sale to any other customer, from the date of acceptance of this order to the date the goods are invoiced to Buyer, Seller agrees to reduce the prices hereof correspondingly.
  3. Extra Charges. No additional charges of any kind, including charges for boxing, packing, or cartage, taxes, import or export duties, excises, taxes, tariffs, or other extra costs, will be allowed unless specifically agreed to in writing in advance by Buyer.
  4. Taxes. Seller’s prices shall exclude any federal, state and local sales, tariff, duty, use or excise taxes levied upon, or measured by the sale, the sales price or use of the goods.  All such taxes, lawfully applicable, shall be listed separately on Seller’s invoice.  If such applicable taxes are not separately listed, Seller assumes full responsibility for such payment, and shall indemnify and hold Buyer harmless from any and all liability in connection with such taxes.  Tax exemption certificates or other evidence of exemption, furnished by Buyer, will be accepted by Seller in lieu of such taxes.
  5. Delivery; Time of the Essence. Time is of the essence in the performance of Seller’s obligations hereunder and Buyer is relying upon timely performance by Seller.  Deliveries shall be made both in quantities and at times specified herein.  Buyer reserves the right at any time to cancel and void this order or any part thereof without liability if delivery is not made within the time specified on the order, or within the time mutually agreed upon.  Buyer’s acceptance of Seller’s late performance shall not be deemed a waiver of this provision.
  6. Transportation and Packaging. Goods shall be packaged, marked, shipped and routed in accordance with Buyer’s direction and the instructions set out in this order, Seller shall pay to Buyer any excess cost caused thereby.
  7. Title and Risk of Loss. Except as otherwise expressly provided herein, title to and the risk of loss on all the goods shipped by Seller to Buyer shall not pass to Buyer until Buyer’s inspection and acceptance of such goods at Buyer’s warehouse, dock, or destination specified.
  8. Acceptance of the Goods and Inspection. Acceptance of the goods shall take place at the time when such goods have been delivered to Buyer and have passed Buyer’s inspection and tests, if applicable.  Inspection and test of the goods by Buyer may at Buyer’s option be made at Seller’s plant and/or the point of destination.  Acceptance of all or any part of the goods by Buyer shall not relieve Seller from any of its obligations and warranties hereunder, nor will acceptance of any part of the order bind the Buyer to accept future shipments or deprive Buyer of any right which it may have to return goods already accepted.  Acceptance of all or any part of the order shall not be deemed a waiver of the Buyer’s right either to cancel or to return all or any portion of the goods because of failure to conform to the order or by reason of defects, latent or patent, or other breach of warranty, or to make any claim for damages, suffered by the Buyer as a result of any default of the Seller or the Seller’s products or performance.  In no event shall payment be deemed to constitute acceptance. If inspection discloses that any part of the goods received is not in accordance with Buyer’s specifications or if any of the goods fail to meet the warranties contained in Paragraph 10 herein, Seller, upon notice thereof from Buyer, shall promptly correct or replace the same at Seller’s expense.  If Seller shall fail so to do within five (5) days after notice is provided, Buyer may cancel this order as to all such goods and in addition, may cancel the then remaining balance of this order.  After notice to Seller, all such goods will be held at Seller’s risk.  Buyer may, and at Seller’s direction shall, return such goods to Seller at Seller’s risk, and all transportation and handling charges, both to and from the original destination, shall be paid by Seller.  Any payment for such goods shall be refunded by Seller unless Seller promptly corrects or replaces the same at its expense.  Return of any defective material by Buyer shall not be deemed a waiver of any right or remedy which Buyer may have as a result of or in connection with the existence of such defect or defects. Buyer reserves the right to conduct verification activities at Seller’s facility to determine conformance to the Buyer’s specified quality requirements.  Such verification shall not be considered evidence of quality control by the Seller, nor does it absolve the Seller of the responsibility to provide acceptable goods, nor shall it preclude subsequent rejection by the Buyer.
  9. Payment. Payment shall be made according to the terms set forth on the face of this order.  Unless otherwise agreed, invoices shall be paid within thirty to forty-five (30-45) days after the receipt of the invoice or of the goods by Buyer, whichever is later.  C.O.D. shipments will not be accepted, unless agree to in writing.
  10. Warranties. The Seller hereby warrants and represents to Buyer that all goods will conform to the specifications, drawings, samples, models or other descriptions furnished by Buyer or by Seller and approved by Buyer, and they will be free from defects in material and workmanship.  Additionally, Buyer shall have the right to all Buyer’s remedies and Seller’s warranties to the fullest extent provided under the Uniform Commercial Code, including, but not limited to warranties or merchantability and fitness.  All warranties and remedies shall survive inspection, tests, acceptance and payment.
  11. Indemnification. Seller shall indemnify and hold Buyer harmless against all loss on account of claims of injuries to persons or damage to property based in whole or in part upon a defect in the goods or from any act or omission of Seller, its agents, employees and subcontractors.  Further, Seller agrees to indemnify and hold harmless the Buyer, its successors and assigns, against any and all claims, liabilities, costs and expenses (including, but not limited to, court costs, attorneys’ fees, inspectors’ fees, or costs of testing, loss of production/time) incurred by Buyer in connection with or related to any recall, inspection, tests, replacement or correction of the goods or any and all parts or equipment in which the goods are incorporated when such recall, inspection, tests, replacement or correction result from or are related to, in whole or in part, a defect or alleged defect in the goods.  Buyer’s obligation to indemnify and hold Seller harmless shall be limited only to those claims arising or resulting from a wrongful act of Buyer, its agents, employees and subcontractors.
  12. Changes. Buyer shall have the right by written notice to cancel, suspend or change from time to time the goods and services to be furnished by Seller hereunder. Upon the receipt of such notice, Seller shall immediately comply with the notice and adjust operations in connection with this order accordingly.  All costs and expenses relating to this order and incurred by Seller subsequent to the receipt of such notice, which would not have been incurred if Seller had complied with such notice, shall be the sole responsibility of Seller.  In the event of cancellation of this order, Buyer shall be responsible and liable only for the price of the goods accepted prior to such notice plus the actual and reasonable costs incurred by Seller prior to notice of cancellation with respect to the goods canceled. In the event of suspension of this order Buyer shall be responsible and liable only for the price of goods eventually accepted.  Any increase in the price of such goods shall be subject to the prior approval of Buyer. In the event of a modification of this order by Buyer (including, but not limited to, a change in the number or design of the goods), Buyer shall be responsible and liable only for the price of the goods accepted plus the actual and reasonable costs incurred by Seller to accomplish such modification.  Any increase in the price of the goods resulting from modification of this order is subject to the prior approval of Buyer. In the event of any cancellation, suspension or modification of this order, Buyer shall not be responsible or liable for any costs of production, processing or shipping of the goods apart from the price of goods accepted if such costs represent a portion of and are included in the price of such accepted goods. In the event of any cancellation, suspension or modification of this order, Seller shall not be entitled to, nor shall Buyer be responsible or liable for, anticipatory profits or consequential damages.
  13. Default. Buyer reserves the right, by written notice, to cancel this order without liability to Buyer in the event of: (a) insolvency of Seller;  (b) the filing by the Seller of a voluntary petition under title 11 of the United States Code;  (c) the filing of an involuntary petition to have Seller declared bankrupt;  (d) the appointment of a Receiver or Trustee for Seller;  or (e) the execution by Seller of an Assignment for the Benefit of Creditors.  If Seller fails to perform, or breaches any of the terms of the order, then Buyer reserves the right to cure upon such failure of performance or breach, and without any liability to Buyer (i) to cancel this order in whole or in part by written notice to Seller, or (ii) after notifying Seller of such failure or breach and of Buyer’s intent to exercise such right, to obtain the goods from another source, with any excess costs resulting there from, chargeable to Seller.  Seller shall be liable for Buyer’s damages in connection with such breach or failure to perform including consequential damages reasonably foreseeable by Seller or of which Seller was apprised by Buyer; provided, however, the Seller shall not be responsible for delays or defaults occasioned by fires, Acts of God, wars or riots, but in the event of such occurrence, Buyer reserves the right to cancel this order without liability of any kind.
  14. Patent or Copyright Indemnification. Except when Buyer supplies all specifications for the goods, Seller shall hold and save Buyer, its successors, assigns, customers and users harmless from loss and/or liability of any nature of kind arising out of or existing because of the infringement or alleged infringement of any patent or copyright for or on account of the manufacture, sale or use of any goods furnished hereunder.  Buyer shall notify Seller in writing of any suit filed against it or their customers, on account of any such infringement or alleged infringement, and at Seller’s request shall give Seller control of the defense of such suit, insofar as Buyer has the authority to do so, and information and assistance for the same, all at Seller’s expense.  Buyer and the party against whom suit is brought, may be represented by their own counsel in any such suit.  Furthermore, in the event that Buyer should be enjoined in such suit or proceeding from using any part of the goods delivered hereunder, Seller, at its option, shall promptly either:  (a) secure termination of the injunction or liability; or (b) replace said goods with non-infringing goods or modify them to become non-infringing, all at Seller’s expense.  The provisions of this paragraph shall not apply to the Buyer’s use of any of the goods delivered hereunder in combination with other materials or in the practice of any process, or to infringement by reason of such use.
  15. Return of Buyer’s Materials. Machinery, equipment, patterns, drawings, specifications, samples and other materials furnished to Seller by Buyer in connection with this order on other than a charge basis shall be held by Seller in trust, and upon the completion of this order shall be returned to Buyer.  All parts or products of Buyer furnished to Seller under this order upon which work or processing is being performed by Seller shall also be returned to Buyer upon completion of this order, even if such parts or products were damaged during the performance of such work or processing.  Unless otherwise agreed, Seller, at its expense, shall insure all such items for the reasonable value thereof against loss or damage of any kind and it shall waive all lien rights under statute or common law.
  16. Safety Data Sheets. Seller shall provide a Safety Data Sheet (SDS) to Buyer for products sold to Buyer hereunder, and where such information is applicable because of the nature of the product, prior to such products being delivered to Buyer’s facility.
  17. Compliance with Laws. Seller shall, in the performance of work under this order, fully comply with all applicable Federal, State and local laws and regulations, and shall indemnify and hold Buyer harmless from any costs, loss or liability arising or resulting from Seller’s failure of compliance.
  18. Assignment. Seller shall not assign or transfer this order or any interest therein or monies payable thereunder without the written consent of the Buyer, which will not be unreasonably withheld, and any assignment or transfer made without such consent shall be null and void.
  19. Remedies. The remedies provided Buyer herein shall be cumulative and in addition to any other remedies provided by law or equity.  A waiver of a breach of any provision hereunder shall not constitute a waiver of any other breach.
  20. Setoff and Recoupment. Buyer may at all times setoff or recoup (which ever may apply) any amount owing from Buyer to Seller or any of Seller’s affiliated companies against any amount payable in connection with this order or any other order by Buyer.  Under no circumstances will Seller have a right of setoff or recoupment against Buyer without prior written notice to Seller and without at least five (5) business days in which Buyer may cure or relieve itself of its liability to Seller.
  21. Notice. Notice given hereunder shall be effective upon receipt and in any event shall be effective no later than (1) three (3) days for notice sent via US mail; (2) twenty-four (24) hours after sending by telegraph, facsimile (fax), or electronic mail (e-mail); at the time shown on a confirmed telecopy message; or (3) at the time of delivery if personally delivered.
  22. Waiver. Buyer’s failure to insist on Seller’s strict performance of the terms and conditions of this order shall not be construed as a waiver of Buyer’s right to insist upon such performance in the future. Buyer’s waiver of a breach of any provision hereunder shall not constitute a waiver of any other breach.
  23. Applicable Law. This contract shall be governed and construed in accordance with Ohio law, excluding such choice-of-law principles and all claims relating to or arising out of this contract, or the breach thereof, whether sounding in contract, tort or otherwise.