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21st CENTURY PLASTICS CORPORATION CONDITIONS OF SALE
General Conditions of Sale
1. MATERIAL PRICE: Prices listed are based on resin costs in effect at the time of this offer. Prices are subject to change upon thirty (30) days written notice from 21st Century Plastics Corporation ("21st Century") based on resin costs, and increases in labor, material and other production costs. 2. CONDITIONS OF SALE: When Buyer's orders contain written provisions which are different than or conflict with the Conditions of Sale of this quotation, these Conditions of Sale shall prevail, unless otherwise agreed to in writing by 21st Century. Modifications, changes, additions, cancellations or suspensions of an order will not be binding upon 21st Century unless accepted by an authorized representative of 21st Century, in writing, upon terms that will indemnify 21st Century against loss. 3. TAX: Unless shown, a separate charge may be made sufficient to compensate for any sales tax, use tax, duty or levy now or hereafter enacted or imposed by any governmental authority which we may be required to pay or collect as a result of manufacturing, sale or delivery of Product based on your order ("Product"). 4. LIMITED WARRANTY: (a) Products manufactured by 21st Century are warranted to be free from defects in workmanship and materials, but are not guaranteed for any specific length of time or measure of service. This is the only express warranty given with respect to the Products purchased from 21st Century. (b) EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, THERE SHALL BE NO IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS, WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, NOTWITHSTANDING ANYTHING CONTAINED HEREIN OR ELSEWHERE TO THE CONTRARY. (c) LIABILITY FOR BREACH OF ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, IS LIMITED EXCLUSIVELY TO REFUND OF INVOICE PRICE ON THE PRODUCT, OR AT 21ST CENTURY'S OPTION, THE REPLACEMENT OF THE PRODUCT, F.O.B. (EX WORKS) 21ST CENTURY. ANY REFUND OR REPLACEMENT OF PRODUCTS WILL NOT COMMENCE UNTIL ORIGINAL PRODUCTS ARE RETURNED TO OUR PLANT. PRODUCTS MAY BE RETURNED AT 21ST CENTURY'S COST ONLY AFTER APPROVAL BY 21ST CENTURY AND RECEIPT BY BUYER OF DEFINITE SHIPPING INSTRUCTIONS FROM 21ST CENTURY. 21ST CENTURY WILL NOT BE RESPONSIBLE FOR ANY PRODUCTS RETURNED WITHOUT 21ST CENTURY'S PRIOR WRITTEN AUTHORIZATION. (d) Notice of a claim for any breach of warranty must be given to 21st Century in writing within thirty (30) days after the date when delivery of the first shipment is received, with respect to which the claim is made. Failure of Buyer within thirty (30) days after receipt of Products to notify 21st Century of its rejection thereof will constitute full and unqualified acceptance by Buyer of the Products. (e) No claim for any inspection costs will be considered unless agreed upon in writing in advance between the Buyer and 21st Century. (f) 21ST CENTURY SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTIES ON THE PRODUCTS OR FOR ANY OTHER BREACH OF THIS CONTRACT. 5. EXCLUSIONS FROM WARRANTY COVERAGE: 21st Century manufactures and sells component products used in a wide variety of end-use applications; however, 21st Century has no knowledge of or control over the end-use application of those component products. End-use application refers to the assembly, intended use, directions for use, warnings, environmental conditions, expected life, and any other factors that can affect performance, reliability, safety and life expectancy of either the component Products or the end-products on which they are used. Therefore, 21st Century assumes no obligation, liability or risk related to performance, reliability, safety and life expectancy of the component Products it sells or for the end-products on which they are used except as stated in the terms of the 21st Century warranty. Any tampering with or alterations of the Products by any person other than an agent of 21st Century will void all warranties and release 21st Century of all obligations and liability hereunder. 21st Century does not warrant the Products against normal wear and tear, or damage caused by misuse, abuse, negligence, or acts of nature. 6. BUYER'S RESPONSIBILITIES: For Buyer to avail itself of this warranty, Buyer must provide 21st Century with a copy of its contract or other dated proof of purchase, proof of payment and submit same to 21st Century with a written warranty request and return of the original Product. The written request must state in detail the alleged defect(s) or problems with respect to the Products and must afford 21st Century at least thirty (30) days after Buyer's return of the original Products to 21st Century to inspect the Products and determine what, if any, repairs or replacements should be made. Thereafter, 21st Century shall be afforded a reasonable period of time to provide any necessary repairs or replacements to Buyer. 7. DELIVERY: The Products shall be delivered by 21st Century F.O.B. (EX WORKS) 21st Century's place of business. All shipping and delivery charges and insurance shall be billed to and paid by Buyer as part of the purchase price for the Products (in addition to per unit, lot or shipment prices). Products shall be deemed conforming, timely and accepted "as is," unless objected to in writing signed by Buyer and delivered to 21st Century within thirty (30) days of delivery of the Products. 8. SUGGESTIONS AND ADVICE: 21st Century's engineering department, when requested, will give assistance to Buyer in the form of suggestions concerning design and construction of Products and/or molds, but 21st Century does not assume any responsibility or liability for the practicality or functionality of any such design suggestions offered or recommended by its Engineering Department, if adopted by Buyer. 21st Century has no knowledge of or control over the end-use application of such component Products and Buyer acknowledges its responsibility and liability with respect to specifications and design of the Products. 9. PAYMENT: Unless otherwise specified in a separate written contract signed by 21st Century and Buyer with respect to the manufacture and sale of the Products, the entire purchase price for the Products shall be due and paid in full within thirty (30) days of shipment. The Buyer agrees to make prompt payment. To the extent that they are granted in writing by 21st Century, 21st Century shall have the right to modify, change or withdraw credit terms at any time without notice, and to request guarantees of payment, security for payment or other proof of financial responsibility (as deemed appropriate by 21st Century). 10. LATE FEE: Buyer shall pay 21st Century a late payment fee for failure to comply with the payment terms contained in the immediately preceding paragraph ("Late Payment Fee"). The Late Payment Fee shall equal the greater of One Hundred Dollars ($100.00) or five percent (5%) of the unpaid purchase price for the Products. The Late Payment Fee is intended to compensate 21st Century for the additional administrative expenses involved with collecting late payments from Buyer, and said Late Payment Fee is acknowledged by Buyer as being fair and reasonable, and same shall not be construed as a penalty. 11. COLLECTION FEES: In the event that Buyer breaches this contract or 21st Century incurs any expenses to enforce this contract or otherwise collect any portion of the sum owed by Buyer hereunder, Buyer shall be liable for, and shall pay to 21st Century, all costs and expenses incurred by 21st Century to enforce this contract or otherwise collect any sum that is past due and owing hereunder, including, without limitation, reasonable attorney fees and court costs (regardless whether litigation is commenced or concluded). Further, in the event that Buyer institutes any claim or litigation against 21st Century that relates to this contract or the Products purchase pursuant to this contract, Buyer shall pay to 21st Century and be liable for all costs and expenses incurred by 21st Century to defend said litigation or claim, including, without limitation, reasonable attorney fees and court costs, in the event that 21st Century prevails (in whole or in part) in defending against such litigation or claim. Further, daily interest shall accrue, at the lesser of one and one-half percent (1.5%) per month or the maximum applicable legal rate, on the balance of any unpaid portion of the purchase price and other sums due under this contract. 12. CANCELLATION: a) An order is not subject to cancellation nor the work subject to delay by Buyer except with the written consent of 21st Century and on terms satisfactory to 21st Century. b) An order may be held up or canceled by the 21st Century if the Buyer's responsibility is questioned at any time, and work thereon shall be continued only upon satisfactory assurances being given as to the Buyer's responsibility. 13. REORDERS AND CHANGES. Reorders, if accepted by 21st Century, are considered as placed under the 21st Century Conditions of Sale. Any changes of specifications after order (or after molds or tools have been started) which result in additional costs incurred by 21st Century shall be paid by Buyer. 14. FORCE MAJEURE: 21st Century shall not be held responsible for failure to deliver or late deliveries if related in whole or in part to acts of nature, strike, accidents, interference by civil or military authorities, consequences of foreign or domestic wars, or other unavoidable cause, at its own plants or those of its sources of supply including transportation difficulties, embargo, shortages, or inability to secure raw materials at reasonable cost. 15. INDEMNITY: It is not the intention of 21st Century to manufacture any Product which is an infringement of a patented article or third party intellectual property rights. If any infringement exists, or if it appears that infringement might exist, 21st Century reserves the right to withdraw its quotation. In any event, Buyer in accepting this offer agrees to fully protect 21st Century and its officers, directors, employees, agents and subcontractors against damages pertaining to Products made to Buyer's specifications. The Buyer guarantees that the manufacture of the Products pursuant to Buyer's specifications will not violate any third party intellectual property rights or infringe on any third party patents, trademarks or copyrights, and the Buyer agrees to hold harmless and indemnify 21st Century against any and all damages, costs and reasonable attorneys fees resulting from any suit or other action that may be initiated by anyone claiming violation of intellectual property rights or infringement of patent, trademark or copyright with respect to Products made pursuant to Buyer's specifications. 16. CHOICE OF LAW, JURISDICTION AND LIMITATION ON CLAIMS: This contract shall be governed by and construed in accordance with Michigan law, notwithstanding any conflicts of laws, principles or doctrines. All claims shall be brought exclusively in the courts located in the state of Michigan (USA) and Buyer hereby consents to the jurisdiction and venue of said courts to the maximum extent possible. All claims, causes of action, lawsuits and proceedings, arising from or otherwise related to this contract or the Products, which are not properly filed and commenced by Buyer within one (1) year from date of delivery of the Products to Buyer or 21st Century's breach of this Contract, whichever is earlier, are hereby forever waived, relinquished and barred. 17. ENTIRE AGREEMENT: The entire agreement is contained herein and there are no other oral understandings or representations. Any proposal for additional terms and conditions or any attempt by Buyer to alter any terms and conditions through Buyer's acceptance by purchase order or through other means shall not operate as a rejection of 21st Century's offer to sell but shall be deemed acceptance by Buyer of this offer to sell without said altered terms and conditions. The terms and conditions contained herein shall prevail over any additional or altered terms and conditions contained in Buyer's purchase documents. All orders are subject to acceptance by 21st Century, and written acknowledgement will be made of all orders accepted. 18. AMENDMENT: The terms and conditions of this quotation shall not be altered or amended, unless by writing signed by an authorized officer of 21st Century. 21st Century shall not be deemed to have waived any provision herein, unless by written instrument signed by an authorized officer of 21st Century. Waiver by 21st Century of any one or more provisions herein shall not be deemed as a waiver of any other provision. The terms and conditions of this quotation shall be binding upon 21st Century and Buyer, and their respective heirs, personal representatives, successors and assigns. Additional Conditions of Sale Regarding Molds and Tools 19. MOLDS. Any molds sold outright to the Buyer become the Buyer's property, and will be surrendered to Buyer, if requested, at any reasonable time provided Buyer's account is fully paid. While held in 21st Century's possession, molds will be maintained in working condition by 21st Century, ordinary wear and breakage excepted. Molds will be stored as long as a Product order utilizing the mold is pending. After two years of inactivity and notice to Buyer, molds are subject to being scrapped or held in storage at a charge of $50.00/month at 21st Century's option. 20. TOOLS. Trimming tools, assembly and check fixtures, experimental molds, etc. will result in direct charges to Buyer. Such tools are considered expendable and will not be surrendered to the Buyer. 21. MOLD AND TOOL CHANGES. Altering or changing of molds and tools from original design will be done at Buyer's risk and expense. Orders for such changes must be submitted to 21st Century in writing, and accepted in writing. 22. DELAYS. Estimates by 21st Century of time for delivery of tools and molds are made in good faith with best information available at time. However, 21st Century assumes no responsibility whatsoever, and will not be responsible for direct or consequential damages in connection with any delays of delivery of molds or tools or variance from any estimated dates of completion. 23. PAYMENT TERMS FOR MOLDS AND TOOLS. Unless otherwise stated in writing, terms of payments for production molds and tools shall be as follows: (a) One-half (l/2) due upon acceptance of mold/tool quotation/offer. (b) Balance due within ten (10) days of receipt by Buyer of pre-production sample submission. (c) Production will begin only after all mold and/or tools charges are paid in full. (d) 21st Century reserves the right to recoup its engineering and development costs in the event of cancellation and/or removal of tools and/or molds prior to amortization of its costs therefore. (e) Molds and tools shall become the property of Buyer when the price herein quoted is paid in full, but may not be removed from 21st Century's possession until 21st Century's engineering and development costs have been paid or amortized in full. (f) Unpaid balances on invoices for molds, tools, and molded Products covered by this quotation shall constitute a lien on any molds or tools in 21st Century's possession. 24. INSURANCE. Buyer shall be responsible for maintaining insurance on all molds and tools kept in 21st Century's possession. 21st Century shall not be responsible for safekeeping of Buyer's molds and/or tools except for damage willfully or intentionally caused by 21st Century, its officers, agents, and/or employees. 25. MAINTENANCE. 21st Century will provide normal maintenance for molds and/or tools while in production. All repairs and/or replacements due to normal manufacturing processes will be provided by 21st Century, at Buyer's costs. 26. MOLD/TOOLS LIMITED WARRANTY. 21st Century warrants that the molds and/or tools to be supplied hereunder will conform to the description on the face hereof and that 21st Century will convey to the Buyer good title thereto. There are no other warranties, express or implied, and no warranties of merchantability or fitness, as to the molds and/or tools supplied by 21st Century pursuant to this quotation, and none shall be implied by law. Final determination of the suitability of molds and/or tools provided pursuant to this quotation shall be the sole responsibility of the Buyer, and 21st Century shall have no responsibility in connection with such suitability.
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