“Fair, Honest, Reasonable, and Striving for Excellence are the guiding principles of Com-Corp Industries.”
ABOUT CCI
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Com-Corp Industries has grown and diversified its products and customer base over the last thirty years to become a state of the art manufacturing facility. From concept engineering to detailed assembly, paint and coatings CCI is capable of producing highly complex parts for automotive and non-automotive applications. With an innovative and dedicated approach, CCI values superior performance and impeccable customer service. In 2018, Com-Corp became an ESOP company giving our dedicated workers ownership interest and full participation in its future. Com-Corp is ISO 9001:2015 Certified
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Terms & Conditions
Com-Corp Industries, Inc.
Terms and Conditions of Sale
All sales of products and services by Com-Corp Industries, Inc. (“Seller”) shall be governed by the following Terms and Conditions of Sale (“Terms of Sale”). In these Terms of Sale, any products sold by Seller to the buyer (“Buyer”) identified in Seller’s quotation/proposal, acknowledgment, invoice or other written instrument (“”Seller’s Proposal”) are referred to below as “Goods,” and any services sold by Seller to Buyer are referred to below as “Services.”
1. Agreement. If Buyer has not otherwise agreed to these Terms of Sale, then Buyer’s acceptance of delivery of, or payment for, the Goods or Services or Buyer’s reference to Seller’s quotation number in its purchase order shall constitute Buyer’s acceptance and agreement to these Terms of Sale. Seller hereby 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 inapplicable and shall have no force or effect. Buyer’s purchase order must reference Seller’s quotation number.
2. Price; Discounts. Production pricing is established at contract award; provided, however, that 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. Productivity discounts, if any, must be agreed upon in writing. Such discounts are conditioned upon Buyer meeting 100% Estimated Annual Usage (EAU) quantities or as otherwise stipulated in Seller’s Proposal. Productivity discounts will be effective following 12 full months of production deliveries and are not calculated upon any dates or events other than actual production deliveries.
3. Payment Terms. Unless otherwise specified in Seller’s Proposal, payment terms are as follows: (a) tooling – 25% at contract award, 25% at design completion, 25% at tool completion and 25% at Part Submission Warrant (described in Paragraph 11), and (b) production parts and Non-Recurring Engineering (NRE) charges net 45 days. Seller may suspend production deliveries if all or any portion of any of Seller’s invoices to Buyer remains outstanding beyond 120 days. If at any time Seller determines that Buyer’s financial condition or credit rating does not justify a sale on credit or if Buyer is at any time in default in any indebtedness or obligation that Buyer owes to Seller, then Seller may require advance payment or may ship C.O.D. Tooling and/or modification invoices must be paid in full prior to delivery. Buyer agrees to submit such financial information from time to time as may be reasonably requested by Seller for the establishment and/or continuation of credit terms. Automatic debits are not permitted unless approved in advance in writing by Seller’s accounting department. In case payment is not made as agreed, Buyer agrees to pay; (a) interest on past due amounts from the time they are due at the rate equal to the lesser of (i) 18% per annum, or (ii) the maximum rate permitted by law and (b) any and all costs and expenses of collection including reasonable attorney’s fees incurred by the Seller in its efforts to recover such amounts so due and owing.
4. Delivery and Risk of Loss. Unless Seller agrees otherwise in writing, delivery shall be F.O.B. Seller’s facility in Cleveland, Ohio or other point of origin and all transportation charges shall be paid by Buyer in addition to the price of the Goods. Subject to Seller’s right of stoppage in transit, delivery of the Goods to the carrier shall constitute delivery to Buyer and title and risk of loss shall thereupon pass to Buyer. Shipping, delivery and performance dates are estimates only. Seller shall not, in any event, be required to ship the Goods unless and until Buyer shall have paid in full the purchase price of all tooling that Seller shall have ordered for use in producing such Goods. Seller may ship all the Goods at one time or in portions from time to time. Seller shall have the right, but not the obligation, to determine the method of shipment and routing of the Goods, unless otherwise stated in the Seller’s Proposal. Seller’s standard lead-time for production parts is 8 weeks from receipt of original order or ongoing delivery schedule. Deliveries are scheduled twice each week. Any deviations to the standard 8 week lead-time are subject to premium charges. Premium charges include, at a minimum, a $500 administrative fee, $850 press break-in charges, overtime labor, appropriate inventory replenishment penalties, and premium freight charges associated with obtaining raw material, sub-contractor premiums and/or expeditious delivery services. In all cases, Seller’s quoted lead-time begins once all appropriate technical data and purchase orders have been received and agreed to by both parties.
5. Taxes and Other Charges. Seller’s price does not include any privilege, occupation, personal property, value-added, sales, excise, use or other taxes, or charges imposed by any government authority, international shipping charges, forwarding agent’s and broker’s fees, consular fees, document fees and import duties and Buyer shall be liable for all such charges, whether or not Seller invoices Buyer for them. If Seller shall be liable for or shall pay any of the foregoing, the same shall be paid by Buyer to Seller in addition to the price of the Goods and Services. In the event the Buyer claims an exemption from any tax, a valid tax exception certificate must be furnished to the Seller.
6. Force Majeure. If Seller is not able to finish and deliver the Goods to Buyer, or to perform the Services, on time because of anything Seller cannot control, then the estimated delivery or performance time shall be extended accordingly, and Seller shall not be liable to Buyer for any damages caused by the delay. Events beyond the control of Seller shall include, but not be restricted to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war (declared or undeclared), rebellion, insurrection, sabotage, epidemic, quarantine restrictions, lock-outs, labor disputes, labor shortages, transportation embargoes or failures or delays in transportation, inability to secure at a reasonable price or in a commercially reasonable manner necessary raw materials or machinery, acts of God, acts (including laws, regulations, disapprovals or failure to approve) of any government, or Buyer’s failure to approve production samples.
7. Changes. Seller shall have the right to make design or engineering changes in its parts, equipment, processes and methods of manufacture, but Seller will not, without Buyer’s prior approval, make any changes in operational or dimensional specifications that Buyer submits.
8. Engineering and Quality. Although Seller offers engineering assistance to produce part prints and CAD data, Buyer is solely responsible for the final form, fit and function of the designs or specifications for the Goods. Buyer must approve the design before production of tools and/or parts. Visual standards of Goods will be determined prior to acceptance of any project award using surrogate samples provided by Seller. Class A, B & C surfaces will be determined at that time. Initial production parts must compare favorably with the pre-determined standards. Cosmetic appearance will be gauged as viewed from arm’s length (1 meter). The general tolerances and dimensions for the Goods are as follows: Tolerances (0.5mm except; (1.5mm for all photometric shading profiles, radii and flanges to be a minimum of 2X material thickness), burrs to be 10% of material thickness; all closed and open angles to be a minimum of 10° (2°), unless otherwise stated in the Seller’s Proposal.
9. Conceptual Design; Prototypes; Mock-ups. If necessary, Seller will provide conceptual designs at no charge at the time of Seller’s Proposal. These designs are confidential. Mock-ups manufactured for other than fit and function testing may not comply with general dimensions and tolerances. Chargeable prototypes or pre-production samples manufactured for fit and function testing will comply with general dimensions and tolerances. Buyer shall issue a purchase order to Seller before Seller begins engineering work and manufacture of prototype, mock-up or pre-production samples. Payment is due upon receipt of samples. Mockups are available 4 weeks after receipt of order (ARO). Prototypes are available 8 weeks ARO. Pre-production samples are available 4 weeks prior to project completion.
10. Testing. Unless otherwise agreed in writing by Seller, Buyer is responsible for all structural testing of Goods.
11. Part Submission Warrant (PSW). PSW submission will occur 2 weeks following tooling completion and includes a Level 1 documentation package and submission. Buyer must supply the latest “as built” CAD data disk and part print unless otherwise contracted with Seller. 300 piece production samples will accompany the PSW documentation package. Seller will translate, develop and produce detailed work instructions, derived from CAD, part prints, dimensions, tolerances, specifications and key characteristics, which will comprise Seller’s technical obligation during production and must be approved as such at PSW. No parts will be delivered without an approved PSW, deviation or waiver.
12. Limited Warranty; Remedies. Buyer agrees to inspect Goods immediately upon receipt of such Goods from Seller and to inspect Services immediately after performance of such Services by Seller. If, prior to use, installation or alteration by Buyer, any item of Goods not subject to abuse or misuse proves to be defective (as defined below), or any Services prove to be defective (as defined below), within 30 days following the date of shipment or performance, as the case may be, and if Buyer gives written notice to Seller of such defect within that period, then Seller shall, at Seller’s option, either repair or replace the defective Goods or reperform the defective Services 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 of defective Goods should accompany such notification. If Buyer uses, installs or alters the Goods or fails to notify Seller within the 30 day period following shipment of the Goods or performance of the Services, 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, installed or altered or subject to misuse or abuse to establish the claim. Returns must be accompanied by a Reject Material Authorization (RMA). Seller will not accept an RMA unless (a) a certain quantity of line accumulated parts as determined by Seller are returned and (b) Seller was notified of the alleged defect at the time it was discovered. No Goods shall be returned to Seller without its prior written 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 Goods or reperform any defective Services within a reasonable time, then Seller shall be liable to Buyer for the lesser of (i) the reasonable costs of repair, replacement or performance by a third party, or (ii) that part of the purchase price of the defective Goods or Services that shall have been paid by Buyer, but Buyer shall not obtain repair, replacement or performance by a third party without giving Seller at least fifteen (15) days prior written notice, during which time Seller may repair or replace the defective Goods or reperform any defective Services. An item of Goods 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) or PSW. 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. Services shall be considered “defective” if it is found by Seller that such Services were not performed in a workmanlike manner and in accordance with general industry practices. EXCEPT AS STATED IN THIS PARAGRAPH, SELLER DOES NOT MAKE ANY OTHER WARRANTY, EXPRESS OR IMPLIED, AS TO THE GOODS OR SERVICES AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS AND SERVICES. In addition, notwithstanding Seller’s engineering content in the design of Goods, Buyer shall always retain responsibility for the final form, fit and function of the Goods and their design. Buyer shall not have any right of rejection or revocation of acceptance of Goods or Services. This paragraph sets forth Buyer’s sole and exclusive remedies for any defect in the Goods or Services. 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 or Services. Any statements to the contrary are hereby rendered null and void unless made in a writing signed by an authorized officer of Seller.
13. Limitation of Liability and Disclaimer of Consequential Damages. Buyer’s recovery from Seller for any claim shall not exceed Buyer’s purchase price for the Goods and Services giving rise to such claim, irrespective of the nature of the claim, whether in contract, tort, warranty, negligence, strict liability or otherwise. Seller shall not be liable for and Buyer shall indemnify and hold Seller harmless from any claims based on Seller’s compliance with Buyer’s designs, specifications or instructions used in providing the Goods and Services or modification of any Goods by parties other than Seller. Buyer shall not in any event be entitled to, and Seller shall not be liable for indirect, special, incidental or consequential damages of any nature including, without limitation, business interruption costs, removal and/or reinstallation costs, reprocurement costs, loss of profit or revenue, loss of data, promotional or manufacturing expenses, overhead, injury to reputation or loss of customers, even if Seller has been advised of the possibility of such damages. Any claim that Buyer shall have against Seller shall be brought within one (1) year of discovery or be forever barred.
14. Patent. Seller shall defend any suit or proceeding brought against Buyer so far as based on a claim that any Goods manufactured by Seller and furnished hereunder constitutes an infringement of any United States Patent, if notified promptly in writing and given authority, information and assistance (at Seller’s expense) for the defense of same, and Seller shall pay all damages and costs awarded therein against Buyer. In case the Goods in such suit are held to constitute infringement and the use thereof enjoined, Seller shall, at its own expense, and at its option, either procure for Buyer the right to continue using said Goods, or replace same with a non-infringing item, or modify it so it becomes non-infringing, or remove said Goods and refund the purchase price. These provisions do not apply when the Goods are furnished in accordance with designs supplied by Buyer.
15. Solvency and Security Interest. Buyer represents that Buyer is solvent. Seller retains a security interest in the Goods to secure payment of the price and all other indebtedness that Buyer now and in the future owes to Seller. Buyer hereby authorizes Seller to file financing statements evidencing the Seller’s security interest in the Goods.
16. Permits and Compliance. Seller is not responsible for obtaining any permit, inspection or license that is required for installation or operation of the Goods. Seller does not make any promise or representation that the Goods will conform to any law, ordinance, regulation, code or standard.
17. Safety Features. Buyer shall install and operate the Goods properly and according to Seller’s operating instructions and shall not remove or change any safety device, warning or operating instructions that Seller placed on the Goods.
18. Components of Another Product. If any of the Goods constitute parts or components that are to be incorporated or installed in a product that is manufactured or assembled by or for Buyer, then (1) 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, (2) Buyer shall cause the product to conform to all applicable laws, ordinances, regulations, codes and standards and (3) Buyer shall place on the product all safety devices and warnings, and shall furnish to its buyer all operating instructions, that are necessary or desirable to prevent any death, personal injury or property damage from being caused by any use or operation of the product.
19. Resale and Export Control. On any resale of the Goods, Buyer shall contractually limit its customer’s rights and remedies against both Buyer and Seller to the same extent that Paragraphs 12 and 13 above limit Buyer’s rights and remedies. The sale, resale or other disposition of Goods are subject to the export control laws, regulations and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries. Buyer agrees to comply with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export any Goods to any country to which such export or transmission is restricted or prohibited. Buyer acknowledges its responsibility to obtain any license to export, re-export or import as may be required.
20. Quantities. Any claim by Buyer that Seller failed to deliver the agreed-upon quantity of Goods must be submitted to Seller in writing within thirty (30) days after Buyer receives the Goods. If Buyer fails to do so, then it shall be conclusively presumed that the proper quantity was delivered.
21. Blanket Purchasing Agreement. If the agreement between Seller and Buyer is a blanket purchasing agreement under which Buyer will from time to time issue to Seller “releases” with respect to portions of the Goods, then, except to the extent that Seller otherwise expressly agrees in writing, (1) when Buyer issues a release for any of the Goods, Seller shall be permitted to ship all of those Goods within 40 days after Seller receives the release, notwithstanding any contrary provision in the release, (2) any delivery dates specified in any release shall be extended automatically to the extent that Seller is not reasonably able to meet such dates and (3) Buyer shall be obligated to release the entire quantity of Goods provided for in the agreement within 30 days after the date on which the agreement is formed.
22. Tooling. Tool development lead-times vary depending upon part complexity. In some cases, all fixtures and gages may not be complete if project schedule compression is needed to meet early pre-production requirements. 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: (1) risk of loss of the tooling shall at all times remain with Buyer; (2) Seller retains a security interest in the tooling to secure all obligations that Buyer at any time owes to Seller; (3) Buyer shall not have any right to possess the tooling as long as Seller has any outstanding obligation to sell to Buyer Goods whose manufacture requires use of the tooling; (4) Buyer shall reimburse Seller on demand for all costs of modifications of the tooling that are made reasonably necessary by changes in the specifications for the Goods; and (5) 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, then Seller may destroy or otherwise dispose of the tooling, without further notice or liability to Buyer. Buyer may not remove any tooling from Seller’s premises until all amounts owing by Buyer to Seller (as determined from Seller’s books and records) are paid in full. Buyer shall indemnify Seller with respect to, and shall, at its own expense, repair any tooling that is damaged during operation unless Seller determines that (i) Seller’s improper operation of the tooling caused the damage or (ii) Seller manufactured the tooling and a manufacturing defect caused the damage. Seller shall not be responsible for delays or defects caused by Buyer-supplied tooling. Seller is not responsible if tool performance exhibited at the time the tooling is delivered to and tried out by Seller prevents Seller from complying with Buyer’s specifications.
23. Changes to Specifications or Orders for Tooling. Buyer may make technical alterations to tool specifications, without penalty, during the first 20% of tool manufacturing lead-time. Changes occurring within 20% 50% lead-time are subject to design fees. Technical changes occurring during final tooling build, or after production begins and alterations to production obligations which change the scope of the contract award technical requirements are subject to a design fee, mechanical rework fees and product re-pricing, as determined by Seller. Significant alterations that cause original design obsolescence, if permitted, are subject to cancellation fees under Paragraph 25, and Seller may, at its option, requote the entire project. Any adjustments, repairs, or other modifications requested by Buyer, or needed for start-of-production, will be quoted and administered separate from the initial production contract.
24. Confidentiality. Buyer shall not disclose or use any information about Seller’s business, operations or activities, except to the extent necessary for Buyer to use the Goods or Services.
25. Cancellation. (a) Buyer does not have any right to cancel its agreement to buy the Goods or Services 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) of the Goods ordered (including an 8 week inventory of the Goods) less allowances (in amounts that Seller determines) for (1) the realizable value to Seller of any standard components that Seller purchased or ordered before cancellation, (2) the realizable scrap value to Seller of the remaining material and tooling that Seller purchased, fabricated or ordered before cancellation and (3) any direct labor costs that Seller saved by reason of the cancellation.
(b) If Buyer fails to pay or perform any indebtedness or obligation that Buyer at any time owes to Seller, then Seller may consider Buyer’s failure to be an anticipatory repudiation of any or all outstanding contracts that provide for Seller to sell Goods or Services to Buyer, and Seller may, without liability to Buyer, cancel any or all of those outstanding contracts.
26. Indemnity. Buyer shall indemnify and hold harmless Seller with respect to all damages, losses, claims and expenses, including consequential and incidental damages and attorney fees, that Seller incurs as a result of Buyer’s breach of any of Buyer’s obligations under these Terms of Sale or any claimed unfair competition or patent, trademark or copyright infringement or any other claim resulting from Seller’s manufacture of the Goods, or performance of the Services, to Buyer’s specifications.
27. Seller’s Rights. Seller has all rights and remedies that applicable law gives to sellers. Seller’s rights and remedies are cumulative, and Seller may exercise them from time to time. Seller’s waiver of any right on one occasion shall not be a waiver of any future exercise of that right.
28. Time For Bringing Action. Any action that Buyer brings against Seller for breach of this Agreement or for any other claim that arises out of or relates to the Goods or their design, manufacture, sale or delivery or the Services must be brought within one year after the cause of action accrues.
29. Applicable Law. Buyer acknowledges that Seller operates its business in the State of Ohio, where all production of Goods and the generation of Services shall initiate. This agreement between Seller and Buyer shall be considered to have been made in the State of Ohio, and it shall be governed by and interpreted according to Ohio law, without giving effect to the conflict of laws rules thereof. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY OHIO STATE COURT OR FEDERAL COURT OF THE UNITED STATED OF AMERICA SITTING IN CUYAHOGA COUNTY, OHIO, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE SALE OF GOODS AND SERVICES OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH OHIO STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
30. Complete Agreement; Amendment. The terms in Seller’s Proposal, acknowledgment or invoice and these Terms of Sale contain the entire agreement between Buyer and Seller. Any change in these Terms of Sale must be by a writing signed by an authorized officer of Seller.
31. Termination for Breach. Seller may terminate its obligations to Buyer, as of the date specified in a notice of termination, if Buyer breaches any material term hereof and Buyer fails to cure such breach within thirty (30) days after receiving written notice of such breach from Seller.
32. Notices. All notices required or permitted under this Agreement shall be in writing and addressed to the respective parties as set forth below, unless another address has been designated in writing. All notices shall be deemed to be given on the date when delivered by hand or by registered or certified mail, postage prepaid and return receipt requested, or on the date received by electronic facsimile device or on the date delivered by commercial courier, with written verification of receipt:
If to Seller:
________________________
Attn: ________________________
If to Buyer, then to the address indicated in the purchase order of Buyer.
Either party may designate a different address for receipt of notices by written notice given in accordance with this Section.
Terms and Conditions of Sale
All sales of products and services by Com-Corp Industries, Inc. (“Seller”) shall be governed by the following Terms and Conditions of Sale (“Terms of Sale”). In these Terms of Sale, any products sold by Seller to the buyer (“Buyer”) identified in Seller’s quotation/proposal, acknowledgment, invoice or other written instrument (“”Seller’s Proposal”) are referred to below as “Goods,” and any services sold by Seller to Buyer are referred to below as “Services.”
1. Agreement. If Buyer has not otherwise agreed to these Terms of Sale, then Buyer’s acceptance of delivery of, or payment for, the Goods or Services or Buyer’s reference to Seller’s quotation number in its purchase order shall constitute Buyer’s acceptance and agreement to these Terms of Sale. Seller hereby 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 inapplicable and shall have no force or effect. Buyer’s purchase order must reference Seller’s quotation number.
2. Price; Discounts. Production pricing is established at contract award; provided, however, that 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. Productivity discounts, if any, must be agreed upon in writing. Such discounts are conditioned upon Buyer meeting 100% Estimated Annual Usage (EAU) quantities or as otherwise stipulated in Seller’s Proposal. Productivity discounts will be effective following 12 full months of production deliveries and are not calculated upon any dates or events other than actual production deliveries.
3. Payment Terms. Unless otherwise specified in Seller’s Proposal, payment terms are as follows: (a) tooling – 25% at contract award, 25% at design completion, 25% at tool completion and 25% at Part Submission Warrant (described in Paragraph 11), and (b) production parts and Non-Recurring Engineering (NRE) charges net 45 days. Seller may suspend production deliveries if all or any portion of any of Seller’s invoices to Buyer remains outstanding beyond 120 days. If at any time Seller determines that Buyer’s financial condition or credit rating does not justify a sale on credit or if Buyer is at any time in default in any indebtedness or obligation that Buyer owes to Seller, then Seller may require advance payment or may ship C.O.D. Tooling and/or modification invoices must be paid in full prior to delivery. Buyer agrees to submit such financial information from time to time as may be reasonably requested by Seller for the establishment and/or continuation of credit terms. Automatic debits are not permitted unless approved in advance in writing by Seller’s accounting department. In case payment is not made as agreed, Buyer agrees to pay; (a) interest on past due amounts from the time they are due at the rate equal to the lesser of (i) 18% per annum, or (ii) the maximum rate permitted by law and (b) any and all costs and expenses of collection including reasonable attorney’s fees incurred by the Seller in its efforts to recover such amounts so due and owing.
4. Delivery and Risk of Loss. Unless Seller agrees otherwise in writing, delivery shall be F.O.B. Seller’s facility in Cleveland, Ohio or other point of origin and all transportation charges shall be paid by Buyer in addition to the price of the Goods. Subject to Seller’s right of stoppage in transit, delivery of the Goods to the carrier shall constitute delivery to Buyer and title and risk of loss shall thereupon pass to Buyer. Shipping, delivery and performance dates are estimates only. Seller shall not, in any event, be required to ship the Goods unless and until Buyer shall have paid in full the purchase price of all tooling that Seller shall have ordered for use in producing such Goods. Seller may ship all the Goods at one time or in portions from time to time. Seller shall have the right, but not the obligation, to determine the method of shipment and routing of the Goods, unless otherwise stated in the Seller’s Proposal. Seller’s standard lead-time for production parts is 8 weeks from receipt of original order or ongoing delivery schedule. Deliveries are scheduled twice each week. Any deviations to the standard 8 week lead-time are subject to premium charges. Premium charges include, at a minimum, a $500 administrative fee, $850 press break-in charges, overtime labor, appropriate inventory replenishment penalties, and premium freight charges associated with obtaining raw material, sub-contractor premiums and/or expeditious delivery services. In all cases, Seller’s quoted lead-time begins once all appropriate technical data and purchase orders have been received and agreed to by both parties.
5. Taxes and Other Charges. Seller’s price does not include any privilege, occupation, personal property, value-added, sales, excise, use or other taxes, or charges imposed by any government authority, international shipping charges, forwarding agent’s and broker’s fees, consular fees, document fees and import duties and Buyer shall be liable for all such charges, whether or not Seller invoices Buyer for them. If Seller shall be liable for or shall pay any of the foregoing, the same shall be paid by Buyer to Seller in addition to the price of the Goods and Services. In the event the Buyer claims an exemption from any tax, a valid tax exception certificate must be furnished to the Seller.
6. Force Majeure. If Seller is not able to finish and deliver the Goods to Buyer, or to perform the Services, on time because of anything Seller cannot control, then the estimated delivery or performance time shall be extended accordingly, and Seller shall not be liable to Buyer for any damages caused by the delay. Events beyond the control of Seller shall include, but not be restricted to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war (declared or undeclared), rebellion, insurrection, sabotage, epidemic, quarantine restrictions, lock-outs, labor disputes, labor shortages, transportation embargoes or failures or delays in transportation, inability to secure at a reasonable price or in a commercially reasonable manner necessary raw materials or machinery, acts of God, acts (including laws, regulations, disapprovals or failure to approve) of any government, or Buyer’s failure to approve production samples.
7. Changes. Seller shall have the right to make design or engineering changes in its parts, equipment, processes and methods of manufacture, but Seller will not, without Buyer’s prior approval, make any changes in operational or dimensional specifications that Buyer submits.
8. Engineering and Quality. Although Seller offers engineering assistance to produce part prints and CAD data, Buyer is solely responsible for the final form, fit and function of the designs or specifications for the Goods. Buyer must approve the design before production of tools and/or parts. Visual standards of Goods will be determined prior to acceptance of any project award using surrogate samples provided by Seller. Class A, B & C surfaces will be determined at that time. Initial production parts must compare favorably with the pre-determined standards. Cosmetic appearance will be gauged as viewed from arm’s length (1 meter). The general tolerances and dimensions for the Goods are as follows: Tolerances (0.5mm except; (1.5mm for all photometric shading profiles, radii and flanges to be a minimum of 2X material thickness), burrs to be 10% of material thickness; all closed and open angles to be a minimum of 10° (2°), unless otherwise stated in the Seller’s Proposal.
9. Conceptual Design; Prototypes; Mock-ups. If necessary, Seller will provide conceptual designs at no charge at the time of Seller’s Proposal. These designs are confidential. Mock-ups manufactured for other than fit and function testing may not comply with general dimensions and tolerances. Chargeable prototypes or pre-production samples manufactured for fit and function testing will comply with general dimensions and tolerances. Buyer shall issue a purchase order to Seller before Seller begins engineering work and manufacture of prototype, mock-up or pre-production samples. Payment is due upon receipt of samples. Mockups are available 4 weeks after receipt of order (ARO). Prototypes are available 8 weeks ARO. Pre-production samples are available 4 weeks prior to project completion.
10. Testing. Unless otherwise agreed in writing by Seller, Buyer is responsible for all structural testing of Goods.
11. Part Submission Warrant (PSW). PSW submission will occur 2 weeks following tooling completion and includes a Level 1 documentation package and submission. Buyer must supply the latest “as built” CAD data disk and part print unless otherwise contracted with Seller. 300 piece production samples will accompany the PSW documentation package. Seller will translate, develop and produce detailed work instructions, derived from CAD, part prints, dimensions, tolerances, specifications and key characteristics, which will comprise Seller’s technical obligation during production and must be approved as such at PSW. No parts will be delivered without an approved PSW, deviation or waiver.
12. Limited Warranty; Remedies. Buyer agrees to inspect Goods immediately upon receipt of such Goods from Seller and to inspect Services immediately after performance of such Services by Seller. If, prior to use, installation or alteration by Buyer, any item of Goods not subject to abuse or misuse proves to be defective (as defined below), or any Services prove to be defective (as defined below), within 30 days following the date of shipment or performance, as the case may be, and if Buyer gives written notice to Seller of such defect within that period, then Seller shall, at Seller’s option, either repair or replace the defective Goods or reperform the defective Services 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 of defective Goods should accompany such notification. If Buyer uses, installs or alters the Goods or fails to notify Seller within the 30 day period following shipment of the Goods or performance of the Services, 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, installed or altered or subject to misuse or abuse to establish the claim. Returns must be accompanied by a Reject Material Authorization (RMA). Seller will not accept an RMA unless (a) a certain quantity of line accumulated parts as determined by Seller are returned and (b) Seller was notified of the alleged defect at the time it was discovered. No Goods shall be returned to Seller without its prior written 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 Goods or reperform any defective Services within a reasonable time, then Seller shall be liable to Buyer for the lesser of (i) the reasonable costs of repair, replacement or performance by a third party, or (ii) that part of the purchase price of the defective Goods or Services that shall have been paid by Buyer, but Buyer shall not obtain repair, replacement or performance by a third party without giving Seller at least fifteen (15) days prior written notice, during which time Seller may repair or replace the defective Goods or reperform any defective Services. An item of Goods 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) or PSW. 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. Services shall be considered “defective” if it is found by Seller that such Services were not performed in a workmanlike manner and in accordance with general industry practices. EXCEPT AS STATED IN THIS PARAGRAPH, SELLER DOES NOT MAKE ANY OTHER WARRANTY, EXPRESS OR IMPLIED, AS TO THE GOODS OR SERVICES AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS AND SERVICES. In addition, notwithstanding Seller’s engineering content in the design of Goods, Buyer shall always retain responsibility for the final form, fit and function of the Goods and their design. Buyer shall not have any right of rejection or revocation of acceptance of Goods or Services. This paragraph sets forth Buyer’s sole and exclusive remedies for any defect in the Goods or Services. 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 or Services. Any statements to the contrary are hereby rendered null and void unless made in a writing signed by an authorized officer of Seller.
13. Limitation of Liability and Disclaimer of Consequential Damages. Buyer’s recovery from Seller for any claim shall not exceed Buyer’s purchase price for the Goods and Services giving rise to such claim, irrespective of the nature of the claim, whether in contract, tort, warranty, negligence, strict liability or otherwise. Seller shall not be liable for and Buyer shall indemnify and hold Seller harmless from any claims based on Seller’s compliance with Buyer’s designs, specifications or instructions used in providing the Goods and Services or modification of any Goods by parties other than Seller. Buyer shall not in any event be entitled to, and Seller shall not be liable for indirect, special, incidental or consequential damages of any nature including, without limitation, business interruption costs, removal and/or reinstallation costs, reprocurement costs, loss of profit or revenue, loss of data, promotional or manufacturing expenses, overhead, injury to reputation or loss of customers, even if Seller has been advised of the possibility of such damages. Any claim that Buyer shall have against Seller shall be brought within one (1) year of discovery or be forever barred.
14. Patent. Seller shall defend any suit or proceeding brought against Buyer so far as based on a claim that any Goods manufactured by Seller and furnished hereunder constitutes an infringement of any United States Patent, if notified promptly in writing and given authority, information and assistance (at Seller’s expense) for the defense of same, and Seller shall pay all damages and costs awarded therein against Buyer. In case the Goods in such suit are held to constitute infringement and the use thereof enjoined, Seller shall, at its own expense, and at its option, either procure for Buyer the right to continue using said Goods, or replace same with a non-infringing item, or modify it so it becomes non-infringing, or remove said Goods and refund the purchase price. These provisions do not apply when the Goods are furnished in accordance with designs supplied by Buyer.
15. Solvency and Security Interest. Buyer represents that Buyer is solvent. Seller retains a security interest in the Goods to secure payment of the price and all other indebtedness that Buyer now and in the future owes to Seller. Buyer hereby authorizes Seller to file financing statements evidencing the Seller’s security interest in the Goods.
16. Permits and Compliance. Seller is not responsible for obtaining any permit, inspection or license that is required for installation or operation of the Goods. Seller does not make any promise or representation that the Goods will conform to any law, ordinance, regulation, code or standard.
17. Safety Features. Buyer shall install and operate the Goods properly and according to Seller’s operating instructions and shall not remove or change any safety device, warning or operating instructions that Seller placed on the Goods.
18. Components of Another Product. If any of the Goods constitute parts or components that are to be incorporated or installed in a product that is manufactured or assembled by or for Buyer, then (1) 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, (2) Buyer shall cause the product to conform to all applicable laws, ordinances, regulations, codes and standards and (3) Buyer shall place on the product all safety devices and warnings, and shall furnish to its buyer all operating instructions, that are necessary or desirable to prevent any death, personal injury or property damage from being caused by any use or operation of the product.
19. Resale and Export Control. On any resale of the Goods, Buyer shall contractually limit its customer’s rights and remedies against both Buyer and Seller to the same extent that Paragraphs 12 and 13 above limit Buyer’s rights and remedies. The sale, resale or other disposition of Goods are subject to the export control laws, regulations and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries. Buyer agrees to comply with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export any Goods to any country to which such export or transmission is restricted or prohibited. Buyer acknowledges its responsibility to obtain any license to export, re-export or import as may be required.
20. Quantities. Any claim by Buyer that Seller failed to deliver the agreed-upon quantity of Goods must be submitted to Seller in writing within thirty (30) days after Buyer receives the Goods. If Buyer fails to do so, then it shall be conclusively presumed that the proper quantity was delivered.
21. Blanket Purchasing Agreement. If the agreement between Seller and Buyer is a blanket purchasing agreement under which Buyer will from time to time issue to Seller “releases” with respect to portions of the Goods, then, except to the extent that Seller otherwise expressly agrees in writing, (1) when Buyer issues a release for any of the Goods, Seller shall be permitted to ship all of those Goods within 40 days after Seller receives the release, notwithstanding any contrary provision in the release, (2) any delivery dates specified in any release shall be extended automatically to the extent that Seller is not reasonably able to meet such dates and (3) Buyer shall be obligated to release the entire quantity of Goods provided for in the agreement within 30 days after the date on which the agreement is formed.
22. Tooling. Tool development lead-times vary depending upon part complexity. In some cases, all fixtures and gages may not be complete if project schedule compression is needed to meet early pre-production requirements. 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: (1) risk of loss of the tooling shall at all times remain with Buyer; (2) Seller retains a security interest in the tooling to secure all obligations that Buyer at any time owes to Seller; (3) Buyer shall not have any right to possess the tooling as long as Seller has any outstanding obligation to sell to Buyer Goods whose manufacture requires use of the tooling; (4) Buyer shall reimburse Seller on demand for all costs of modifications of the tooling that are made reasonably necessary by changes in the specifications for the Goods; and (5) 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, then Seller may destroy or otherwise dispose of the tooling, without further notice or liability to Buyer. Buyer may not remove any tooling from Seller’s premises until all amounts owing by Buyer to Seller (as determined from Seller’s books and records) are paid in full. Buyer shall indemnify Seller with respect to, and shall, at its own expense, repair any tooling that is damaged during operation unless Seller determines that (i) Seller’s improper operation of the tooling caused the damage or (ii) Seller manufactured the tooling and a manufacturing defect caused the damage. Seller shall not be responsible for delays or defects caused by Buyer-supplied tooling. Seller is not responsible if tool performance exhibited at the time the tooling is delivered to and tried out by Seller prevents Seller from complying with Buyer’s specifications.
23. Changes to Specifications or Orders for Tooling. Buyer may make technical alterations to tool specifications, without penalty, during the first 20% of tool manufacturing lead-time. Changes occurring within 20% 50% lead-time are subject to design fees. Technical changes occurring during final tooling build, or after production begins and alterations to production obligations which change the scope of the contract award technical requirements are subject to a design fee, mechanical rework fees and product re-pricing, as determined by Seller. Significant alterations that cause original design obsolescence, if permitted, are subject to cancellation fees under Paragraph 25, and Seller may, at its option, requote the entire project. Any adjustments, repairs, or other modifications requested by Buyer, or needed for start-of-production, will be quoted and administered separate from the initial production contract.
24. Confidentiality. Buyer shall not disclose or use any information about Seller’s business, operations or activities, except to the extent necessary for Buyer to use the Goods or Services.
25. Cancellation. (a) Buyer does not have any right to cancel its agreement to buy the Goods or Services 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) of the Goods ordered (including an 8 week inventory of the Goods) less allowances (in amounts that Seller determines) for (1) the realizable value to Seller of any standard components that Seller purchased or ordered before cancellation, (2) the realizable scrap value to Seller of the remaining material and tooling that Seller purchased, fabricated or ordered before cancellation and (3) any direct labor costs that Seller saved by reason of the cancellation.
(b) If Buyer fails to pay or perform any indebtedness or obligation that Buyer at any time owes to Seller, then Seller may consider Buyer’s failure to be an anticipatory repudiation of any or all outstanding contracts that provide for Seller to sell Goods or Services to Buyer, and Seller may, without liability to Buyer, cancel any or all of those outstanding contracts.
26. Indemnity. Buyer shall indemnify and hold harmless Seller with respect to all damages, losses, claims and expenses, including consequential and incidental damages and attorney fees, that Seller incurs as a result of Buyer’s breach of any of Buyer’s obligations under these Terms of Sale or any claimed unfair competition or patent, trademark or copyright infringement or any other claim resulting from Seller’s manufacture of the Goods, or performance of the Services, to Buyer’s specifications.
27. Seller’s Rights. Seller has all rights and remedies that applicable law gives to sellers. Seller’s rights and remedies are cumulative, and Seller may exercise them from time to time. Seller’s waiver of any right on one occasion shall not be a waiver of any future exercise of that right.
28. Time For Bringing Action. Any action that Buyer brings against Seller for breach of this Agreement or for any other claim that arises out of or relates to the Goods or their design, manufacture, sale or delivery or the Services must be brought within one year after the cause of action accrues.
29. Applicable Law. Buyer acknowledges that Seller operates its business in the State of Ohio, where all production of Goods and the generation of Services shall initiate. This agreement between Seller and Buyer shall be considered to have been made in the State of Ohio, and it shall be governed by and interpreted according to Ohio law, without giving effect to the conflict of laws rules thereof. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY OHIO STATE COURT OR FEDERAL COURT OF THE UNITED STATED OF AMERICA SITTING IN CUYAHOGA COUNTY, OHIO, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE SALE OF GOODS AND SERVICES OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH OHIO STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
30. Complete Agreement; Amendment. The terms in Seller’s Proposal, acknowledgment or invoice and these Terms of Sale contain the entire agreement between Buyer and Seller. Any change in these Terms of Sale must be by a writing signed by an authorized officer of Seller.
31. Termination for Breach. Seller may terminate its obligations to Buyer, as of the date specified in a notice of termination, if Buyer breaches any material term hereof and Buyer fails to cure such breach within thirty (30) days after receiving written notice of such breach from Seller.
32. Notices. All notices required or permitted under this Agreement shall be in writing and addressed to the respective parties as set forth below, unless another address has been designated in writing. All notices shall be deemed to be given on the date when delivered by hand or by registered or certified mail, postage prepaid and return receipt requested, or on the date received by electronic facsimile device or on the date delivered by commercial courier, with written verification of receipt:
If to Seller:
________________________
Attn: ________________________
If to Buyer, then to the address indicated in the purchase order of Buyer.
Either party may designate a different address for receipt of notices by written notice given in accordance with this Section.