Terms and Conditions of Sale

1.  Buyer’s Acceptance.  The following terms and conditions (the “Agreement”) including those on the front side of this document, shall constitute the entire agreement for the purchase and sale of the product(s) and/or the performance of any conversion services (hereinafter referred to as “product(s)” and “conversion services” or, if referring to Buyer’s material (“Buyer supplied material”) that Seller has performed conversion services to,  “converted material”) from Fort Wayne Metals Research Products, LLC (“Seller”) to you (“Buyer”). No waiver, alteration or modification of this Agreement shall be valid unless in writing and signed by an authorized representative of Seller. Notwithstanding, no modification shall be affected by the acknowledgment or acceptance of purchase orders containing other or different terms or conditions whether or not signed by any other representative of Seller. Any terms and conditions contained in Buyer’s purchase order or request for quotation which are different from or in addition to, the terms and conditions contained herein shall not be binding on Seller, and Seller hereby rejects the same. This Agreement prevails over any terms and conditions contained or referred in any documents of Buyer.  BUYER’S RECEIPT OF THIS DOCUMENT SHALL CONSTITUTE AN ACCEPTANCE BY THE BUYER OF ALL THE TERMS AND CONDITIONS CONTAINED HEREIN EXCEPT FOR ANY TERM AND CONDITION TO WHICH BUYER SHALL OBJECT IN WRITING WITHIN FOURTEEN (14) DAYS FROM THE RECEIPT HEREOF.

2.  Effect of Terms.  This Agreement is intended by the parties as a final expression of their agreement and as a complete and exclusive statement of the terms thereof. It is the intent of the parties to nullify the effect of any prior dealings in the construction and interpretation of this Agreement, and no course of such prior dealings shall be read into this Agreement for any purpose whatsoever.

3.  Seller’s Acceptance of Orders.  Each order or acceptance of a quotation for products or conversion services shall be deemed an offer by Buyer to purchase the product(s) or conversion services subject to the terms and conditions set forth in this Agreement and, Seller reserves the right to reject any order from Buyer in its sole and absolute discretion. No order shall be deemed accepted unless and until Seller either issues written notice of acceptance, performs all ordered conversion services or ships the ordered products or converted material. Prior to order acceptance, Seller shall have no liability if it is unable to supply the products or perform the conversion services for any reason.

4.  Taxes and Charges.  In addition to the purchase price, Buyer shall pay Seller the amount of all government taxes (including Value Added Tax), levies, imposts, duties, excises and/or other charges that Seller may be required to pay, charge, levy, or collect with respect to the production, sale or transportation of any products delivered or conversion services rendered hereunder, except where the law provides otherwise. Seller shall have the right to invoice separately any such taxes which may be imposed at a later time. Applicable tax exemption certificates must accompany any order to which the same applies. Buyer shall pay Seller a late payment charge of 1.50% per month of the unpaid purchase price of any products or conversion services for each month or part thereof that said purchase price is not paid when due, and shall also pay all costs and expenses (including attorney’s fees) of Seller to collect any unpaid amount.

5.  Warranty.  Seller’s sole and exclusive warranty is that at the time of delivery to Buyer the products or converted material will comply with the Specification delivered by Buyer.  With regard to conversion services, Seller’s sole and exclusive warranty is that it will perform all services in a diligent and workmanlike manner and according to best industry standards (at the time of the relevant work) and/or in accordance with any relevant statements of work or Specification(s). Buyer hereby assumes all risk and liability arising from the use, by itself or anyone else, of any product or converted material in any Buyer product. Notwithstanding the preceding sentence, this warranty shall be void once the products or converted material have been processed, manipulated, or incorporated into the Buyer product or if the product(s) or converted material have been misused or damaged by Buyer or its agent.  In the event any products or converted material fail to meet the applicable Specification, Buyer must notify Seller, in writing, within thirty (30) days of the receipt of the products or converted material.  Buyer will have the right to reject any products or converted material which do not meet the Specification at the time of delivery to Buyer, if (and only if) Buyer provides the written notification within thirty (30) days of delivery of the products or converted material by Seller to Buyer.  The written notice must identify the non-conforming products or converted material, including lot number and delivery date, and specify the non-conformity. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES WHATSOEVER TO BUYER, ITS END-USERS OR TO ANY THIRD PARTIES WITH RESPECT TO THE PRODUCTS, CONVERSION SERVICES OR CONVERTED MATERIAL WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY EXCEPT AS SET FORTH ABOVE, AND ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE WHICH ARE HEREBY EXCLUDED. IT IS BUYER’S RESPONSIBILITY TO CONDUCT ITS OWN CLINICAL TESTS AND OTHER STUDIES TO DETERMINE THE SAFETY AND EFFICACY OF THE PRODUCTS OR CONVERTED MATERIAL FOR BUYER’S CONTEMPLATED APPLICATIONS OR USES.

6.  Buyer’s Remedies and Limitations.  Buyer’s receipt of any products or converted material shall constitute an unqualified acceptance of and a waiver of any and all claims with respect to such products, converted material or conversion services performed unless Buyer notifies Seller within thirty (30) days of such receipt that the products, converted material or conversion services do not conform to the warranty outlined in paragraph 5 above and Seller must be allowed to inspect and test immediately upon the receipt of such notification.  Subject to the foregoing, Seller’s liability under said warranty shall be limited to the replacement or repair of the products at Seller’s option or, if regarding conversion material or services, reprocessing or credit of any converted material which does not conform with applicable Specifications or statements of work. Any warranty provided herein with regard to conversion services of converted material shall be null and void in the event Buyer provides Buyer supplier material that contains inherent or latent defects. In the event Seller damages or loses Buyer supplied material, Seller’s liability shall be limited as follows: (A) if Buyer has paid for conversion services for the damaged or lost Buyer supplied material, Seller shall refund Buyer’s payment for that specific conversion services paid for; and (B) Seller shall pay the (i) direct labor and material cost for the damaged or lost Buyer supplied material. Seller shall pay transportation costs of products and converted material to and from Seller’s plant only if Seller agrees that products or converted material are non-conforming after an opportunity to inspect and/or test and directs Buyer to return the products or converted material, in writing. Buyer assumes all risk and liability for the results obtained by the use of the products or converted material delivered hereunder in manufacturing processes of Buyer or in combination with other substances. No claim of any kind whether as to products or converted material delivered, for non-delivery of products or for conversion services rendered shall be greater in amount than the purchase price of the of the products or conversion services in respect of which such claim is made and in no case shall Seller be liable for special, incidental, or consequential damages whether or not caused by the negligence of Seller.

7.  Risk/Title.  Unless identified otherwise on the front side of this document, any and all risk in the products or converted material shall pass to Buyer and Seller shall have no liability whatsoever for damage, loss or deterioration of the products or converted material after delivery of the products or converted material to a common carrier, regardless of whether Seller charges Buyer for freight. Buyer acknowledges that all claims for losses caused by a common carrier, including those for inconvenience, delay or expense shall only be made against the carrier. In no event shall Buyer deduct any amount for damage in transit from the amount due hereunder.  Until such time as the price of the products or conversion services has been paid, Buyer shall store the products or converted material in such a way as to enable them to be identified as the property of Seller and shall be liable to Seller for all damage to the products or converted material howsoever caused.  Buyer hereby irrevocably agrees that representatives of Seller may without notice to Buyer enter onto Buyer’s premises with such vehicles and equipment as may be necessary to remove the products or converted material.  Buyer shall retain title to Buyer supplier material; however, Buyer acknowledges that Seller: (i) assumes no liability for Buyer supplied material(s) that it receives; (2) is not responsible for any damage or loss to the Buyer supplied material (outside of the remedies set forth in Section 6); and (3) does not assume any responsibility for transportation or insurance for the Buyer supplied material.

8.  Indemnification by Buyer.  Buyer shall, at its own expense, defend, indemnify and hold harmless Seller and its Parent Company for any claims, suits, proceedings and for the avoidance of doubt, third party discovery orders and/or similar orders brought against Seller and for costs and expenses associated therewith (including reasonable legal fees) arising out of, based on, caused by, or relating to: (i) any Buyer product or Buyer supplied material; (ii) modification of any products or converted material by the Buyer, including but not limited to, further processing of the products or converted material by Buyer; (iii) Buyer’s mishandling of any products or converted material; (iv) use of a product at the instruction of Buyer or promoted by Buyer, contrary to the use outlined, or in an application or environment for which such product or converted material was not approved, designed or contemplated, by Buyer or otherwise; or (v) any design, specification, instruction or materials requested or provided by Buyer. 

9. Intellectual Property.  Buyer must ensure that the terms of its order and any design or specification furnished by Buyer or prepared at the request of, and agreed with, Buyer, are complete and accurate and indemnifies and shall keep indemnified Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement arising from Seller’s compliance with the Buyer’s drawings, designs, or instructions .   

10.Contingencies.  Stated shipping dates, dates of delivery, and dates for performing labor, if any, are approximate, and are not binding or a guarantee of any particular date of shipment or delivery. Seller shall not be liable for its failure to perform hereunder due to causes or contingencies beyond its control including but not limited to strikes, fires, floods, accidents, acts of God, acts of law or public authorities, delay in transportation, lack of raw materials, or otherwise, and Seller may at its option cancel this Agreement or reduce deliveries accordingly, or allocate supply in such a manner as it deems equitable.

11.Cancellation.  Seller shall have the absolute right to cancel this Agreement upon breach by Buyer, including without limitation, upon Buyer’s failure to make any payment required by this Agreement, or upon the insolvency or bankruptcy of Buyer.  No purchase order which has been  accepted by Seller may be canceled by Buyer except with the written agreement of Seller and on terms that Buyer shall pay Seller a cancellation charge (to include, at Seller’s discretion, all loss (including loss of profit), costs (including the cost of all labor and materials used), damages, charges and expenses incurred by Seller as a result of cancellation) and such cancellation charge has been accepted and paid by Buyer.

12.Wrongful Rejection.  If Buyer wrongfully rejects the products or conversion services, or wrongfully repudiates a part or the whole Agreement, then with respect to any products or conversion services affected and, if the breach is of the whole Agreement, then also with respect to the whole undelivered balance, Seller may withhold delivery of such products or converted material or, if the performance of conversion services have not yet commenced or been completed, Seller may halt continued performance of the conversion services, stop delivery in possession of a carrier or other bailee, and recover damages for nonacceptance or repudiation. The measure of damages shall be the difference between the market price at the time and place for tender of the products or converted material and the unpaid contract price, together with any incidental damages incurred by Seller as a result of Buyer’s breach. The foregoing shall be in addition to and not exclusive of, other remedies which Seller may have by law.

13.Quantities.  In the case of orders for products to be manufactured to Specifications, Seller may deliver up to 10% above or 10% below any quantity so ordered, thereby completing the order.

14.Tooling.  Tooling charges apply only to initial orders unless subsequent orders are for substantially larger quantities requiring production tooling or additional dies or patterns to meet delivery requirements.

15.Deliveries.  All domestic shipments shall be FOB-Fort Wayne Metals Research Products, LLC (FWM) unless otherwise stated on the front side of this document.  All international shipments made by freight forwarder shall be EXW-Fort Wayne Metals Research Products, LLC (FWM) Incoterms® 2020 and all shipments made by parcel service shall be FCA-Fort Wayne Metals Research Product, LLC (FWM) Incoterms® 2020 unless otherwise stated on the front side of this document (if DAT, shall be governed by Incoterms® 2010). Buyer supplied material shall be delivered in accordance with the shipment terms set forth on the relevant acknowledged purchase order. All deliveries hereunder are subject to the condition that all indebtedness of Buyer to Seller due before the date of shipment shall first be paid. “Incoterms” is a trademark of the International Chamber of Commerce.  

16.Changes.  Prior to the date of delivery of the products or converted material, Buyer shall, subject to Seller’s written agreement, have the right to make changes in its order provided that Seller receives written notice of the desired changes and agrees to the changes and provided further that Buyer accepts any additional charge therefore as determined by Seller. Changes which interfere with or alter Seller’s production schedules, as determined by Seller, will not be acceptable unless the time for performance is extended for such period as is deemed necessary by Seller. Failure of Seller to accept Buyer’s request to change its purchase order (or similar ordering document) shall not be cause for Buyer’s cancellation of its order except upon payment of a cancellation charge to be determined by Seller.

17.Export Sales.  It is the responsibility of the Buyer, having carried out appropriate inquiries, to advise the Seller if the products or conversion services being quoted/ordered are subject to the export laws and regulations of any country, including those of the United States and, if so, to provide all assistance that is reasonably required by Seller to ensure that the supply of the products or the converted material to the Buyer does not breach such export laws and regulations.  Buyer shall not export, directly or indirectly, any products or converted material acquired from the Seller under this Agreement in breach of any applicable laws or regulations, including United States export laws and regulations, to any country for which the United States or any other government or agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. Buyer has complied and/or will comply with all other applicable laws, rules and regulations pertaining to the purchase and movement of, and the payment for the products or converted material, to be delivered hereunder. All refunds of duties paid on items entering into the manufacture of the products or converted material delivered hereunder shall accrue to Seller, and the Buyer agrees to furnish Seller with all documents necessary to obtain payment of such refunds and to cooperate with Seller in obtaining same.

18.Applicable Law.  The validity, interpretation and performance of the sale shall be governed by the laws of the State of Indiana and the United States of America and specifically excluding the application of the United Nations Convention on Contracts for the International Sale of Goods. Buyer agrees that any action for breach hereunder shall be commenced within one year from the date of delivery of the products or converted material.

19.Miscellaneous.  If any provision of this Agreement is prohibited by law, invalidated by the enactment of any statute, ordinance or regulation, or declared unlawful by a court of competent jurisdiction, it shall be ineffective only to the extent of such prohibition and shall not in any manner invalidate or effect the remaining provisions of this Agreement. The rights of Seller shall not be prejudiced or restricted by any forbearance extended by Seller to Buyer and waiver of any particular breach shall not operate as a waiver of any subsequent breach. A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted and includes any subordinate legislation made under that statutory provision. A reference to writing or written includes faxes and emails.