Terms and Conditions of Sale

  1. APPLICABILITY. These Terms and Conditions of Sale (“Terms”) are the only terms and conditions which govern the sale of the goods (“Goods”) by Modumetal, Inc. (“Seller”) to buyer (“Buyer”) and supersede all other terms and conditions, oral or written, and all other communications between the parties suggesting additional or different terms. 
  2. ENTIRETY. These Terms represent the final and complete understanding of the parties and may be amended or cancelled only by mutual written agreement. Acceptance is expressly limited to these Terms and acceptance will be effective only if the Buyer accepts all its terms. Any proposal for additional or different terms or any attempt by Buyer to vary these Terms is hereby deemed material and is objected to and rejected. No terms of any document or form submitted by Buyer shall be effective to alter or add to these Terms. The earlier of Seller’s commencement of performance or Buyer’s receipt of any of the Goods shall constitute acceptance of these Terms. If a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
  3. PRICES. Prices quoted are based on the price at the time of quotation and are subject to change without notice. Clerical errors are subject to correction without liability. Visa, MasterCard, and American Express are accepted for orders. Credit card arrangements are subject to change. We reserve the right to correct typographic errors and reject or cancel orders. Applicable law may prevent the sale of some products in your area.
  4. TAXES. Prices do not include any sales, use, excise, privilege, duties, or other taxes or assessments now or hereafter imposed or levied by or under the authority of any foreign, federal, state, or local law, rule, or regulation (collectively, “Law”) concerning the Goods or the manufacture or sale thereof. If Seller pays any such taxes or assessments, Buyer shall, upon demand, immediately reimburse Seller for such amounts.
  5. TERMS OF PAYMENT. All payments are due net 30 days from date of invoice. All orders are subject to acceptance in writing by Seller. No discounts shall be taken unless specifically allowed in writing by Seller. All amounts due Seller from Buyer shall be paid without abatement, deduction, or setoff. The date of payment of an invoice shall be the date the payment is received by Seller at the location designated on the invoice. Invoices not paid when due are subject to a late payment service charge of the lesser of 1.5% per month or the highest rate permitted under the law, calculated daily and compounded monthly. If Buyer fails to make any payment when due, Buyer shall be liable for all costs and expenses related to collection of past due amounts, including, without limitation, attorneys’ fees and costs. If, in Seller’s judgment, the financial condition of Buyer does not justify continuance on the terms of payment above, Seller may require full or partial payment in advance or otherwise adjust the terms including ceasing to supply Buyer.
  6. FREIGHT. Unless agreed by Seller in writing, all shipments shall be F.O.B. origin. Risk of loss or damage to Goods shall pass to Buyer upon delivery to Buyer, to its designated agent, or to a carrier for delivery to Buyer, whichever occurs first.
  7. DELIVERY. Shipping and delivery dates are estimates only and are based upon prompt receipt of all necessary information from Buyer. Seller does not guarantee delivery dates.  Delays in securing Buyer’s approval of any matter shall, at Seller’s discretion, extend the date of delivery.  Seller shall not be liable for any claim, Loss, expense, or damage of any kind whatsoever for delivery delays past any estimated delivery date, loss, or damage in transit.
  8. INSPECTION. Buyer shall inspect the Goods upon arrival, and Buyer shall immediately notify Seller in writing of any claims that the Goods do not conform to Seller’s warranty for such Goods. Failure to give such written notice during within 10 days of delivery will constitute satisfactory shipment by Seller and irrevocable acceptance by Buyer of all Goods.
  9. BLANKET ORDERS. All Goods under a blanket order must be requested by Buyer for delivery within the agreed-upon time frame, which shall not exceed one year from the date of the blanket order, and shall be delivered in the agreed-upon release quantities.
  10. CHANGES. Changes in specifications or designs relating to any products, changes in delivery schedules or reschedules or cancellations of orders are not permitted unless Seller has accepted same in writing, has determined the additional charge to be made, if any, and the same has been paid by the Buyer.
  11. RETURNS. Goods may not be returned without prior written authorization by Seller and compliance with Seller’s return policies and procedures. Requests to return Goods must be made within 30 days after receipt of Goods by Buyer. Goods must be in like-new condition, in their original packaging and able to be returned to stock. Goods that are made to order, discontinued, or custom products (specially manufactured Goods) are not returnable for credit. Returns are subject to a 25% restocking fee and must be shipped prepaid.
  12. STORAGE. In the absence of agreed shipping dates, Seller may invoice Buyer and ship the Goods once they are ready for shipment. If, because of Buyer’s inability to take delivery, the Goods are not shipped, stopped in transit or returned, Seller may store them for Buyer at Buyer’s expense and risk and risk of loss shall pass to Buyer when the Goods are placed in storage and such date shall constitute the date of shipment for purposes of beginning the warranty and payment periods.
  13. LIMITED WARRANTIES. Seller sells Goods in accordance with Buyer’s specifications. Buyer acknowledges and agrees that Buyer is solely responsible for determining whether Buyer’s specifications meet Buyer’s and the ultimate customer’s needs.  Buyer acknowledges and agrees that any recommendations expressed by Seller are recommendations only, and that final approval of any such recommendations is the sole and exclusive responsibility of Buyer. Seller warrants the Goods in accordance with its written limited warranty in effect from time to time and if none, then Seller warrants that the Goods will be free from defects in material and workmanship for a period of 12 months after shipment. THESE ARE SELLER’S ONLY WARRANTIES. SELLER MAKES NO OTHER EXPRESS WARRANTIES AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. If Buyer notifies Seller in writing during the warranty period that the Goods are not in conformity with the warranty, and if Seller determines that the Goods are non-conforming, Seller will repair or replace or refund the purchase price therefor, at its sole option, F.O.B. point of manufacture, provided Buyer returns such Goods to Seller’s plant, freight prepaid. This shall be Buyer’s exclusive remedy for Seller’s liability. Any claims not made during the warranty period are deemed waived by Buyer. Seller’s warranty does not attach to Goods or parts not manufactured by Seller.
        Seller will pass on to Buyer, the warranty, if any, it receives from the manufacturer of Goods or part not manufactured by Seller, but only to the extent allowed by such manufacturer. Seller’s aggregate liability to Buyer or anyone claiming through or on behalf of Buyer, with respect to any claim or Loss arising out of or relating to any Goods or alleged to have resulted from any act or omission of Seller, whether negligent or otherwise, and whether in tort, contract, or otherwise, shall be limited to an amount not to exceed the price received by Seller for the Goods with respect to which such liability is claimed. Any contract created between the Seller and Buyer is subject to the specific conditions that (a) Seller is not obligated to provide insurance or to indemnify Buyer (other than as provided in Section15), and (b) there are no flow-downs from any person or entity including, but not limited to, the federal government or any other governmental entity, that become part of the contract. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, MODUMETAL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSEUNDER NO CIRCUMSTANCES  SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OR ANY OTHER LOSSES OR EXPENSES, INCLUDING WITHOUT LIMITATION, FOR INJURIES TO PERSONS OR DAMAGE TO PROPERTY, LOSS OF PROFIT, REVENUES OR USE, DIMINUTION IN VALUE, COST OF SUBSTITUTE PRODUCTS, DOWNTIME COSTS, OR CLAIMS OF BUYER’S CUSTOMERS EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. Upon the occurrence of any event described in Section 14(i)-(vi) without the prior written consent of Seller, this warranty shall be void.
  14. INDEMNIFICATION. Buyer shall defend, indemnify and hold Seller, its affiliates and their respective officers, directors, members, managers, representatives, agents and employees harmless from and against all claims, suits, demands, losses, liabilities, damages (including injury and death) and expenses (including reasonable attorneys’ fees)
    (collectively, “Losses”), arising out of or relating to: (a) Buyer’s or its agent’s provided specifications, design, structure, operation, material or method of making Goods including (“Buyer’s Specifications”), without limitation, any resulting violation of intellectual property or proprietary rights; (b) Buyer’s use, misuse or disposal of Goods or materials; (c) Buyer’s non-compliance with any Law; (d) breach of these Terms by Buyer; and (e) Goods subjected to: (i) improper installation or storage; (ii) accident, damage, abuse or misuse; (iii) abnormal operating conditions or applications; (iv) operating conditions or applications above the rated capacity of the Goods; (v) repairs or modifications made to all or part of the Goods without the prior written consent of Seller; or (vi) a use or application other than or varying in any degree from the specifications and Seller’s instructions.
  15. PATENTS. Except as provided in Section 14 and provided Buyer has made all payments due Seller, Seller shall defend any suit brought against Buyer based upon a claim that the Goods infringe any United States patent issued as of the date of Seller’s quotation and shall pay any damages and costs finally awarded therein against Buyer, provided that Seller is notified promptly in writing of such suit and is given full authority, information and assistance by Buyer to defend or settle the suit. Notwithstanding anything to the contrary, Seller will have no liability to the extent that the suit is based upon: (i) modifications to any item made by or on behalf of the Buyer in a manner that causes the infringement; (ii) use of any item in combination with that causes the infringement; (iii) the failure of the Buyer to use corrections or enhancements to the Goods that are made available by Seller; (iv) Buyer’s Specifications; (v) Buyer’s distribution, marketing or use for the benefit of third parties of the Goods; or (vi) use not authorized under these Terms. If the Goods or any part thereof are deemed to infringe any such patent, Seller shall, at its expense and sole option either: procure for Buyer the right to continue using said Goods or parts; replace them with non-infringing Goods or parts; modify them so they become non-infringing; or remove them and refund the purchase price for them depreciated over no more than 3 years.
  16. IMPROVEMENTS. Seller shall be granted a fully-paid, worldwide, transferable, non-exclusive right to any patentable innovation developed by Buyer as direct result of the test, evaluation and application of Goods.
  17. TOOLING. Any tools, jigs, dies, patterns, etc. (collectively, “Tooling”), which Seller owns, makes or acquires for the production of Goods shall be and remain Seller’s property, notwithstanding any charge Seller may have made therefor. In no event shall Buyer have any interest in any Tooling which is utilized in the production of Goods, or which has been converted or adapted by Seller for such use, notwithstanding any charge for any such utilization, conversion or adaption.  Seller retains rights to patented Tooling.
  18. CONFIDENTIALITY. All non-public, confidential or proprietary information of Seller is confidential, solely for the use in performing hereunder and may not be disclosed, used or copied unless authorized in advance by Seller in writing. Furthermore, test results associated with the Goods shall be considered confidential and proprietary information and shall not be published without written permission of Seller.
  19. FORCE MAJEURE. Seller shall not be liable for any delay in or failure to perform due to any cause, matter or contingency beyond its reasonable control.
  20. TERMINATION. Seller shall have the right to cease work or terminate these Terms or any purchase order, in whole or in part, at any time, without liability, if: (i) Buyer breaches or defaults under these Terms or any other agreement it has with Seller; (ii) a petition under any applicable law relating to bankruptcy, insolvency, or reorganization is filed by or against Buyer; (iii) Buyer executes an assignment for benefit of creditors; (iv) a receiver is appointed for Buyer or any substantial part of its assets; or (v) Seller shall have any reasonable ground for insecurity with respect to Buyer’s ability to perform and Buyer is unable to provide Seller with adequate assurance within ten days after written request therefore by Seller. In all cases, Seller’s rights are cumulative, are not exclusive and in addition to all other rights and remedies it may have at law or in equity. No termination shall affect any accrued rights or obligations of either party as of the effective date of such termination.
  21. WAIVER. All waivers by Seller shall be in writing. Failure of Seller at any time to require Buyer’s performance of any obligation hereunder shall not affect Seller’s right to require performance of that obligation. No delay or omission in the exercise of any right, power, or remedy hereunder shall impair such right, power, or remedy or be considered to be a waiver of any default or acquiescence therein.
  22. MISCELLANEOUS. Buyer shall not assign any of its rights or obligations hereunder without Seller’s prior written consent. Buyer shall comply with all applicable laws. There are no third-party beneficiaries. These Terms shall be construed in accordance with the laws of the State of Michigan without regard to any rules on conflicts of laws. Provisions which by their nature should survive will remain in force after any termination or expiration. The section headings are included solely for the convenience of the parties.