TERMS OF SALE
CASCADE DIE CASTING GROUP, INC.
All sales of products of Cascade Die Casting Group, Inc. (“Seller”) are made on the following terms and conditions. In these Terms of Sale, any products sold by Seller to the buyer named on the Seller quotation, invoice or shipping document referencing these Terms of Sale (“Buyer”) are referred to below as “goods.”
1. Acceptance. If the Seller quotation, invoice or shipping document referencing these Terms of Sale is deemed an acceptance, Seller’s acceptance is expressly conditioned on Buyer’s consent to these Terms of Sale. If the Seller quotation, invoice or shipping document referencing these Terms of Sale constitutes an offer, Seller expressly limits acceptance to these Terms Of Sale. If Buyer has not otherwise agreed to these Terms of Sale, then Buyer’s acceptance of delivery of or payment for the goods shall constitute Buyer’s agreement to these Terms of Sale. SELLER OBJECTS TO AND WILL NOT AGREE TO ANY TERMS THAT ARE ADDITIONAL TO OR DIFFERENT FROM THESE TERMS OF SALE. Terms that are printed on or contained in a purchase order or other form prepared by Buyer which are additional to, in conflict with, or inconsistent with those herein shall be considered to be inapplicable and shall have no force or effect. These Terms of Sale, together with the description, quantity, price, and other terms set forth on the Seller quotation, invoice or shipping document referencing these Terms of Sale, are intended by the parties as a final expression of their agreement and as a complete and exclusive statement of the terms and conditions of that agreement. Any prior or subsequent oral agreements or representations shall not modify the agreement. The agreement may not be abrogated, varied, modified, supplemented, or waived except in writing signed by an authorized representative of Seller.
2. Payment Terms. Unless otherwise specified on the Seller quotation, invoice or shipping document referencing these Terms of Sale, payment in full of the price is due 30 days after shipment, without discount, except that if at any time Seller determines that Buyer’s financial condition or credit rating does not justify a sale on credit or if Buyer shall at any time be in default in any indebtedness or obligation owing to Seller, then Seller may require advance payment or may ship C.O.D Any payment not made when due shall accrue a finance charge of 1-1/2% per month. Buyer shall pay the reasonable costs and expenses (including reasonable attorneys’ fees) incurred by Seller in collecting or attempting to collect any amounts owing from Buyer to Seller. Payment must be made at Seller’s office in Grand Rapids, Michigan or as otherwise directed by Seller. Seller shall have the right to increase its prices at any time upon notice to Buyer to reflect any unusual or unforeseen increase in Seller’s costs, including, but not limited to, an increase in the cost of materials.
3. Delivery and Risk of Loss. Unless otherwise stated on the Seller quotation, invoice or shipping document referencing these Terms of Sale, delivery shall be F.O.B. Seller’s plant or other point of origin, but risk of loss of the goods shall pass to Buyer upon identification of the goods to this contract. Shipping dates are estimates only, and time is not of the essence. Seller may ship all the goods at one time or in portions from time to time. Seller shall have the right to determine the method of shipment and routing of the goods, unless otherwise specified by Buyer. Excess packing, shipping, and transportation charges resulting from compliance with Buyer’s request shall be at Buyer’s expense. All risk or loss or damage in transit shall be on Buyer and all claims for loss or damage in transit or for non-delivery shall be made by Buyer against the carrier. Buyer shall not reject goods damaged in transit, but shall pursue as its exclusive remedy claims against the carrier for damaged or lost goods. Buyer is responsible for inspecting the goods upon receipt and making claims for damage to the goods directly to the delivering carrier. Seller shall not honor claims or back charges for damages to goods in transit and shall not accept return shipments consigned to, but refused by, Buyer. If Buyer causes or requests delay in the manufacture, assembly, or shipment of goods, Buyer shall pay Seller for all expenses and losses resulting therefrom.
4. Unavoidable Delay. If Seller is unable to finish and ship the goods to Buyer on time because of anything Seller cannot control (such as casualty, labor trouble, fire, flood, governmental act or regulation, riot, inability to obtain supplies, materials or shipping space, plant breakdown, equipment failure, power failure, delay or interruption of carriers, tool defects, unscheduled maintenance, accident or acts of God), then the estimated delivery time shall be extended accordingly, and Seller shall not be liable to Buyer for any damages caused by the delay.
5. Defects; Remedies. Buyer agrees to inspect the goods immediately upon receipt of such goods from Seller. If, prior to use, fabrication or alteration by Buyer, any item of goods not subject to abuse or misuse proves to be defective (as defined below) within 30 days following the date of shipment, and if Buyer gives written notice to Seller of such defect within that period and does not use, fabricate or alter the goods, then Seller shall, at Seller’s option, either repair or replace the defective item, at Seller’s expense. Notice of a breach of Seller’s warranty must be made in writing addressed to Seller, setting forth sufficient detail to permit identification by Seller of the claimed defect. Samples should accompany such notification. If Buyer uses, fabricates or alters the goods or fails to notify Seller within the 30 day period following shipment of the goods, any claim for breach of warranty shall be conclusively deemed to have been waived by Buyer with respect to the alleged defect. In the event of a defect in any goods constituting a breach of the warranty provided herein, Seller shall furnish instructions for the disposition of the defective goods. Seller shall have the option of requiring the return of the defective goods, transportation prepaid, and proof that the goods were not used, fabricated or altered or subject to misuse or abuse to establish the claim. No goods shall be returned to Seller without its prior consent. The acceptance of any goods returned to Seller shall not be deemed an admission that the goods are defective or in breach of any warranty, and if Seller determines that the goods are not defective they may be returned to Buyer at Buyer’s expense. If Seller fails to repair or replace any defective item within a reasonable time, then Seller shall be liable to Buyer for the lesser of (i) the reasonable costs of repair or replacement by a third party; or (ii) that part of the purchase price of the defective goods that shall have been paid by Buyer, but Buyer shall not obtain repair or replacement by a third party without giving Seller at least 15 days prior written notice, during which time Seller may repair or replace the defective item. An item shall be considered “defective” if it is found by Seller to have been defective in materials or workmanship and if the defect materially impairs the value of the goods to Buyer, except that the goods shall not be defective to the extent that (i) they conform with drawings of or specifications for or a sample of goods that have been approved by Buyer; or (ii) they conform with goods, testing results, dimensional layouts or manufacturing methods that have been submitted and approved in connection with the production part approval process (PPAP). If Buyer’s representative agrees, either orally or in writing, to a change in or waiver of the specifications for any item of goods, then such goods shall not be considered defective to the extent they conform to the specifications as so changed or waived. This Section sets forth Buyer’s sole and exclusive remedies for any defect in the goods. Neither Buyer nor any other person may modify or expand the warranty provided herein, waive any of the limitations, or make any different or additional warranties with respect to the goods. Any statements to the contrary are hereby rendered null and void unless made in a writing signed by an authorized officer of Seller.
6. Intellectual Property. Seller shall have the unrestricted right to sell to other parties products identical or similar to the goods, unless the products conform precisely to designs and specifications furnished to Seller by Buyer and Buyer has provided Seller with timely evidence that Buyer is vested with exclusive patent rights in such designs and specifications. If the goods are made to Seller’s designs and specifications, Seller shall retain exclusive proprietary rights in such designs and specifications, and Buyer shall not obtain products conforming to or based upon such designs or specifications from any source other than Seller without the prior written authorization of Seller. All modifications of the goods, of their designs and specifications, and of methods of their manufacture, handling, installation, operation, and use originated or developed by Seller or acquired by Seller from other parties shall be and remain the exclusive property of Seller, regardless of whether Buyer or Seller provided the original designs and specifications, and Buyer shall not obtain products embodying, incorporating or employing any such modifications from any source other than Seller without the prior written authorization of Seller.
7. Limitations. EXCEPT AS STATED IN SECTION 5, SELLER MAKES NO WARRANTIES AS TO THE GOODS AND, IN PARTICULAR, MAKES NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS. SELLER SHALL HAVE NO TORT LIABILITY TO BUYER WITH RESPECT TO ANY OF THE GOODS, THEIR DESIGN AND MANUFACTURE, OR FOR THE OMISSION OF ANY WARNING THERETO AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES ARISING FROM ANY PRODUCT DEFECT, DELAY, NONDELIVERY, RECALL OR OTHER BREACH BY SELLER, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DEATH, PROPERTY DAMAGE, LOST PROFITS, OR OTHER ECONOMIC INJURY. BUYER SHALL HAVE NO RIGHT OF REJECTION OR OF REVOCATION OF ACCEPTANCE OF THE GOODS.
8. Components of Another Product. If any of the goods constitute parts or components to be incorporated or installed in a product manufactured or assembled by or for Buyer, then (i) Buyer shall obtain, or cause the end-user of the product to obtain, all permits, inspections and licenses required for installation or operation of the product; (ii) Buyer shall cause the product to conform to all applicable laws, ordinances, regulations, codes and standards; and (iii) Buyer shall place on the product all safety devices and warnings, and shall furnish to its buyer all operating instructions that shall be necessary or desirable to prevent any death, personal injury or property damage from being caused by any use or operation of the product.
9. Resale. On any resale of the goods, Buyer shall contractually limit its buyer’s rights and remedies against both Buyer and Seller to the same extent as Buyer’s rights and remedies are limited under Sections 5 and 7 above.
10. Tooling. If Seller imposes and Buyer pays a separately-identified charge for tooling to be used in the manufacture of the goods, then the tooling shall be the property of Buyer, subject to the following: (i) risk of loss of the tooling shall at all times remain with Buyer; (ii) Seller retains, and Buyer grants to Seller, a security
interest in the tooling to secure all obligations at any time owing by Buyer to Seller; (iii) Buyer shall have no right to possession of the tooling as long as Seller has any outstanding obligation to sell to Buyer goods whose manufacture requires use of the tooling; (iv) Buyer shall reimburse Seller on demand for all costs of modifications of the tooling made reasonably necessary by changes in the specifications for the goods; and (v) upon Seller’s demand, Buyer shall immediately remove the tooling from Seller’s premises, at Buyer’s expense, and if Buyer fails to do so within ten days after that demand, Seller may destroy or otherwise dispose of the tooling, without further notice or liability to Buyer.
(A) Buyer has no right to cancel its agreement to purchase the goods from Seller. If, however, Seller agrees in writing to permit cancellation, then Buyer shall immediately pay to Seller a cancellation charge in an amount equal to the purchase price (including any tooling charge) less allowances (in amounts determined by Seller) for (i) the realizable value to Seller of any standard components purchased or ordered by Seller before cancellation; (ii) the realizable scrap value to Seller of the remaining material and tooling purchased, fabricated or ordered by Seller before cancellation; and (iii) any direct labor costs saved by Seller by reason of the cancellation.
(B) If Buyer fails to pay or perform any indebtedness or obligation owing to Seller (whether or not related to the sale of goods described on the Seller quotation, invoice or shipping document referencing these Terms of Sale), then Seller may consider Buyer’s failure to be an anticipatory repudiation of any or all outstanding contracts providing for Seller to sell goods to Buyer, and Seller may, without liability to Buyer, cancel any or all of those outstanding contracts.
(C) Seller shall have no obligation to sell or provide goods to Buyer except for the specified goods ordered by Buyer and accepted by Seller, regardless of the course of dealing among the parties or any statements made by Seller to the contrary.
12. Indemnity. Buyer agrees that (i) before using the goods, Buyer shall determine the suitability of the goods for Buyer’s intended use and shall assume all risk and liability whatsoever in connection with that determination; (ii) Buyer shall use the goods properly and according to any instructions included with the goods or otherwise provided; (iii) Buyer shall assume all risk of the goods infringing the patent, trademark, copyright or other proprietary rights of any third party; and (iv) Buyer shall install the goods in accordance with any instructions and all applicable laws and codes. Buyer shall indemnify and hold harmless Seller, and if so requested defend Seller, with respect to all costs, damages, losses, claims, judgments, and expenses, including attorney fees, that Seller incurs as a result of or in connection with (i) any act, omission or use of the goods by Buyer, its employees, or its customers; (ii) any breach by Buyer of any of its obligations under these Terms of Sale or any other agreement with Seller; (iii) any claimed unfair competition, or any claimed patent, trademark, or copyright infringement, or any claimed infringement of any other proprietary right; or (iv) any other claim resulting from Seller’s manufacture of the goods to Buyer’s specifications. The sale of goods to Buyer shall not grant Buyer any right or license of any kind under any intellectual property owned or controlled by Seller or under which Seller is licensed, except the limited license to use, modify, and resell the goods.
13. Confidentiality. Buyer shall maintain the confidentiality of, and shall not disclose or use or permit to be disclosed or used any information concerning Seller’s business or Seller’s manufacture of the goods. If there is a breach of this Section (either actual or threatened) by Buyer, Seller’s remedies at law will be inadequate. Therefore, Seller shall have the right of specific performance or injunctive relief, or both, in addition to any and all other remedies and rights at law or in equity, and Seller’s rights and remedies shall be cumulative.
14. Seller’s Rights. Seller has all rights and remedies given to sellers by applicable law, and Seller’s rights and remedies are cumulative and may be exercised from time to time. A waiver by Seller of any right on one occasion will not be a waiver of any future exercise of that right.
15. Taxes. Seller’s price does not include any sales, use or excise tax or any other taxes on the manufacture, sale, shipment, or delivery of the goods, and Buyer shall be liable for all such taxes, whether or not invoiced by Seller. In the event any such taxes are paid by Seller, Buyer shall immediately reimburse Seller upon demand
16. Time For Bringing Action. Any action by Buyer against Seller for breach of these Terms of Sale or for any other claim arising out of or relating to the goods or their design, manufacture, sale or delivery must be brought within one year after the cause of action accrues. In the interpretation of this limitation, it is agreed that there are no warranties of future performance of the goods, except as expressly granted by Seller in writing, that would extend the period of limitation for bringing an action provided for in these Purchase Terms.
17. Applicable Law. All sales of goods and these Purchase Terms shall be governed by and interpreted according to Michigan law. Any action arising out of or relating to the sale of goods and these Purchase Terms may be brought in any federal or state court in Grand Rapids, Michigan, having jurisdiction of the subject matter, and Buyer irrevocably consents that any such court shall have personal jurisdiction over Buyer and waives any objection that the court is an inconvenient forum.