Terms & Conditions of Sale
1. Acceptance and Modification
This document, together with any quotation, constitutes an offer or counteroffer (an “Offer”) by Ultra Manufacturing/Mitchell Plastics, or its subsidiary or affiliate (“Seller”) to sell certain products and/or services (the “Products”) to purchaser (“Purchaser”), subject to and in accordance with these terms and conditions and attachments to this document (the “Terms and Conditions”). This document is not an acceptance of any offer or counteroffer made or purchase order submitted by Purchaser. This Offer and any order arising out of, or issued by Purchaser following receipt of this Offer (collectively, the “Contract”) are each expressly conditioned upon Purchaser’s assent to all of the Terms and Conditions. Seller’s acceptance of any order is subject to Purchaser’s assent to all of the Terms and Conditions set forth herein. Purchaser acknowledges agreement with these Terms and Conditions by placement of an order to purchase Products from the Seller or its acceptance of all or any part of the Products. Seller objects to any additional or different terms or conditions contained in any request for quotation, request for proposal, purchase order or other document or communication previously or hereafter provided by Purchaser to Seller. If a purchase order or other correspondence contains terms or conditions contrary to the terms and conditions contained in Seller’s acknowledgement, Seller’s acceptance of any order shall not be construed as assent to any additional terms and conditions, nor will that constitute a waiver by Seller of any of the Terms and Conditions nor an acceptance of any such additional provisions. No such additional or different terms or conditions will be of any force or effect, unless specifically agreed to by an executive officer of Seller in writing. The Contract constitutes the entire understanding between the parties with respect to the subject matter of the contract and supersedes any prior discussions, negotiations, agreements and understandings. Modifications to the Contract can be made only by a writing signed by an authorized representative of each party.
Unless otherwise set forth on the face of Seller’s quotation, the term of the parties’ Contract shall be the life of the program for which the Products are to be supplied. Seller may terminate the Contract upon ninety (90) days written notice. In the event of a termination by Purchaser, Purchaser shall at a minimum pay to Seller: (i) the agreed unit price for completed Products, in addition to work in process and raw material based on any forecasted schedule, release or order issued by Purchaser prior to notice of termination; (ii) all other costs incurred by Seller prior to termination connected with work under the Contract; and (iii) all other costs incurred by Seller associated with the termination of the Contract.
3. Delivery and Terms of Sale
Sale and trade terms are from Seller’s specified FOB point or warehouse, and duty, taxes and customs fees are Purchaser’s responsibility. Purchaser orders and/or delivery schedules need to be issued at least 16 weeks in advance of the desired delivery date, and are non-terminable, irrevocable purchase obligations. Air freight or alternative inland handling for rush shipments may be available upon Purchaser request and at Purchaser’s sole expense. Purchaser shall be responsible for all transportation arrangements and costs from Seller’s specified FOB point or warehouse to Purchaser’s destination.
4. Risk of Loss
Risk of loss or damage and any further cost and responsibility for claims, delivery, and, if applicable, placement and storage shall pass from Seller to Purchaser, and delivery shall be deemed to be complete, upon delivery by Seller to Purchaser’s private or common carrier at Seller’s specified FOB point or warehouse. Title to goods shall pass to Purchaser upon pick-up of goods from Seller’s FOB point or warehouse, subject to Seller’s rights as an unpaid vendor.
5. Security Agreement
To secure payment of the price payable under the Contract and performance of all of Purchaser’s obligations under the Contract, Purchaser hereby: (i) grants to Seller a purchase money security interest in all Products; and (ii) authorizes Purchaser to file such financing statements and other documents, and agrees to execute such other documents and to do such other acts, as Seller may reasonably deem necessary or advisable to protect its rights in such Products. In the event Purchaser breaches the terms or conditions of the Contract, Seller shall be entitled to, among other damages, an award of costs and attorney fees.
- (a) Unless otherwise agreed, Purchaser shall make payment according to the terms in the proposal. Any variance in the payment terms must be approved in writing by Seller. If Purchaser fails to pay any invoice when due or if, in the judgment of Seller, the financial condition of Purchaser at any time prior to shipment does not justify the extension of credit, then Seller may stop any pending or future shipments until past due amounts are paid in full, and require payment in advance or otherwise modify the payment terms upon notice to Purchaser. Monthly interest at the highest rate allowed by law, shall be charged to all overdue accounts. Purchaser will reimburse Seller for all costs and expenses (including attorneys’ fees and the costs of bringing any action) incurred in collecting any amounts past due.
- (b) Purchaser acknowledges and agrees that payments owed to Seller for Products supplied under this Contract are not subject to any setoff or recoupment by Purchaser unless and until Seller agrees in writing to such setoff or recoupment, and that Purchaser shall not exercise its right to setoff or recoupment in connection with any disputed, contingent, or unliquidated claim.
Unless otherwise quoted, prices shall be those in effect at the time of shipment. Unless other terms are specified in the attachments to this document, all prices are quoted and payable in U.S. dollars. The prices quoted do not include any taxes imposed on the sale of the Products. Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, GST, value added tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority (whether domestic or foreign, or federal, state or local) on or measured by the transactions between Seller and Purchaser (other than income taxes imposed on Seller) shall be added to the price of Products, invoiced separately, and paid by Purchaser in addition to the prices quoted or invoiced. Purchaser agrees to reimburse Seller for any such tax or provide Seller with acceptable tax exemption certificate.
8. Limited Warranty
- (a) Seller provides the following Limited Warranty applicable for two years from the date of delivery of the Product: the Products shall meet the specifications as set forth in Seller’s quotation for the Products supplied. Purchaser agrees to inspect the Products upon receipt and, at that time, report any defect. Any claim for defect must be made within thirty (30) days of discovery of the defect.
- (b) EXCEPT AS PROVIDED IN THIS PARAGRAPH, SELLER MAKES NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER EXPRESS OR IMPLIED WARRANTY. SUCH WARRANTIES HEREBY ARE DISCLAIMED.
9. Force Majeure
Seller shall not be liable for delays or failures in performance of an order or default in delivery arising out of or resulting from causes beyond its control. Such causes include, but are not restricted to, acts of God, acts of Purchaser, acts of the Government, fire, epidemics, quarantine restrictions, strikes or other labor issues, freight embargoes, severe weather or default of suppliers due to any of such causes.
10. Patents, Trademarks and Copyrights
- (a) Subject to designs, drawings, and specifications supplied by Purchaser for the Products, Seller shall own any and all intellectual property rights (including any rights in patents, trademarks, copyrights, and similar intellectual property rights, both in the United States and in jurisdictions foreign thereto) related to or embodied in the Products, including intellectual property rights arising from the development of the Products, and no rights in such intellectual property are transferred or licensed to Purchaser other than the limited right to incorporate Products purchased from Seller in products to be manufactured or sold by Purchaser.
- (b) Purchaser shall immediately notify Seller of any action instituted by an unrelated third party against Purchaser related to infringement of any patent, trademark or copyright by Products manufactured by Seller pursuant to the Contract. Seller, at its option, may elect to assume defense of any such action and shall have the right to settle any such claims without notice to Purchaser. If Seller elects to assume defense of such claims: (i) immediately upon receipt, Purchaser shall provide Seller with all processes and papers served upon Purchaser; (ii) permit Seller through its counsel, either in the name of Purchaser or in the name of Seller, to defend such suits; and (iii) give all needed information, assistance and authority to enable Seller to do so.
- (c) Purchaser expressly warrants that all designs, drawings, and specifications supplied by Purchaser for the Products will not and do not infringe any patent, trademark, copyright or other intellectual property of any third party. Purchaser: (i) agrees to defend, hold harmless and indemnify Seller and its affiliates against all claims, demands, losses, suits, damages, liability and expenses (including actual fees for attorneys, experts and consultants, settlement costs and judgments) arising out of any suit, claim or action for actual or alleged direct or contributory infringement of, or inducement to infringe, any patent, trademark, copyright or other proprietary right by reason of the manufacture, use or sale of the Products, or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Purchaser’s actions; and (ii) waives any claim against Seller and its affiliates, including any hold-harmless or similar claim, whether known or unknown, contingent or latent, in any way related to a claim asserted against Seller or Purchaser for infringement of any patent, trademark, copyright or other proprietary right, including claims arising out of compliance with designs, drawings, and specifications furnished by Purchaser.
11. Root Cause of Defects
Seller shall be given reasonable and prompt opportunity to examine any claim of defect by the Purchaser, including an opportunity to conduct Seller’s own independent root cause or failure analysis. Seller shall have the right, but not the obligation, to participate in any root cause investigation by Purchaser concerning Seller’s Products.
12. Limitation of Damages
- (a) THE MAXIMUM LIABILITY, IF ANY, OF SELLER FOR ALL DAMAGES, INCLUDING WITHOUT LIMITATION CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM SELLER'S BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PURCHASE PRICE OF THE PRODUCTS AT ISSUE IN THE CLAIM.
- (b) IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES AND PROFITS RELATING TO RECALL EXPENSES AND REPAIRS TO PROPERTY INCLUDING THIRD PARTY CLAIMS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Changes in the Products
Purchaser may request in writing changes in the specifications and shipping instructions of Products. As promptly as practicable after receipt of such request, Seller shall advise Purchaser whether or not such changes are feasible, timing for implementation if feasible, and what amendments to the Contract, if any, may be necessitated by such changes, including, without limitation, amendment of price, specifications and shipment schedule. If such proposed amendments to the Contract are accepted in writing by Purchaser, Seller shall make the requested changes with respect to such Products as may be affected thereby.
- (a) Purchaser shall indemnify and hold harmless Seller and its affiliated companies, their directors, officers, employees, invitees, agents and customers (“Indemnitees”) from and against all liability, demands, claims, losses, costs, actions, judgments, fines, penalties, damages and expenses, including reasonable attorney’s fees (collectively, “Liabilities”) incurred by Indemnitees by reason of or on account of: (i) any breach of the Contract; (ii) warranty claims, product recall claims, product liability claims, injuries to persons, including death, or damage to property arising from Purchaser’s design of the Products.
- (b) Within a reasonable time of becoming aware of any actual or potential Liabilities, Seller shall notify Purchaser. Purchaser, at Seller’s option and at Purchaser’s expense, will undertake defense of such actual or potential Liabilities through counsel approved by Seller. Provided, however, that Purchaser shall first obtain authorization from Seller before settlement is made of the actual or potential Liabilities if the terms of such settlement could materially adversely affect Seller, including any terms which admits the existence of a defect in Products or a failure of Seller to fully and faithfully perform its obligations. In the alternative, Seller may elect to undertake defense of such Liabilities to the extent it is asserted against Seller, and Purchaser shall reimburse Seller on monthly basis for all expenses, attorney fees, and other costs incurred by Seller.
- (a) This Contract shall be governed by and construed according to the internal laws of the state or province in which Seller produces the Product (without reference to principles of conflicts of laws). The rights and obligations of the parties hereunder shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.
- (b) Seller and Purchaser specifically agree that any action brought by Seller or Purchaser to enforce any of the provisions of this Offer or the Contract shall be brought, heard and determined exclusively in either the federal or state court of the state or province in which Seller produces the Product. The parties stipulate that the referenced venues are convenient.
- (c) Seller’s failure to exercise a right or remedy or Seller’s acceptance of a partial or delinquent payment shall not be deemed to be a waiver of any of Seller’s rights or Purchaser’s obligations under this Contract, and shall not constitute a waiver of Seller’s right to declare an immediate or a subsequent default.
- (d) No assignment of this contract or of any right or obligation under this contract shall be made by Purchaser without the prior written consent of Seller. In the event of a proper assignment, the contract shall be binding upon and inure to the benefit of the Purchaser’s successors and assigns.
- (e) In the event of Seller’s enforcement of any term or condition in the Contract, Purchaser shall be liable to Seller for all costs, including attorneys’ fees, incurred by Seller in enforcing the Contract and in collecting any sums owed by Purchaser to Seller.
- July 14, 2020