Terms & Conditions

AGREEMENTS

1. (a) Submission of Buyer’s purchase order will be acknowledged in writing by Kent Foundry Co. (“Seller”) upon which it shall be deemed to constitute an acceptance of this proposal and of these Terms and Conditions, which shall, together with the Seller’s acknowledgement, govern the purchase and sale of the goods specified in Buyer’s purchase order from Seller to Buyer (the “Transaction”). This proposal is subject to change or withdrawal at any time prior to acceptance. The quotations herein are based upon current material prices and labor costs, and Seller reserves the right to increase the price quoted in accordance with any increase in the price of material and/or cost of labor as of date or dates of delivery.

(b) If Buyer’s purchase order contains any written, printed or stamped provisions conflicting with the written, printed or stamped provisions of this proposal, these Terms and Conditions or of Seller’s acknowledgement of order, then the provisions of Seller’s proposal, these Terms and Conditions and Seller’s acknowledgement shall prevail. No stipulations, representations, agreements or understandings shall be valid unless made in a writing contained in Seller’s proposal or acknowledgement, or in documents annexed or referred to therein.

(c) After purchase orders are acknowledged by Seller, they are not subject to cancellation, change, reduction in amount, or suspension of delivery, except with Seller’s written consent. No modification or alteration of the provisions hereof shall result from Seller’s shipment of goods or materials following receipt of Buyer’s purchase order, shipping order, or other forms containing provisions, terms or conditions in addition to or in conflict with the provisions hereof. Modifications, changes, additions, cancellations or suspensions will not be binding upon Seller unless accepted by Customer Service / Sales Department of Seller in writing upon terms that will indemnify Seller against all loss. It is expressly agreed that there are no terms, conditions or representations not expressed herein.

(d) Clerical errors are subject to correction. Prices are subject to any city, county, state or federal taxes which are or may become effective. If quantities are reduced or production held up or interrupted by Buyer, castings or molded products will be subject to extra charge for the loss involved. Bankruptcy or insolvency of the Buyer shall operate to excuse Seller’s performance and no rights of any trustee in bankruptcy shall arise by reason of or under the terms of this agreement, nor from any failure of Seller to continue to perform under this agreement after the filing of any petition in bankruptcy or insolvency.

PRICES / PAYMENT

2. (a) The final price for the products quoted on the face hereof will be given in the Seller’s acknowledgement.

(b) Seller has in place a Metal Surcharge and adjusts that amount monthly, and Buyer will be charged accordingly based on the date of invoice.

(c)Unless otherwise agreed to in writing, all payment terms are Net 30 days from the Date of Invoice.

(d) NO CREDIT WILL BE ISSUED AFTER 6 MONTHS FROM INVOICE DATE.

(e) No castings will be accepted for return unless prior approval is obtained from the Customer Service / Sales Department or Quality Department.

FORCE MAJEURE

3. Seller shall be free from any liability for delay or failure in manufacture, shipment or delivery of samples or products arising from strikes, lockouts, labor troubles of any kind, accidents, perils of sea, fire, earthquakes, acts of nature, civil commotion, war, consequences of war, government acts, restrictions of requisitions, failure of manufacturers or suppliers to deliver, bankruptcy, or insolvency of manufacturers or suppliers, suspension of shipping facilities, acts or defaults of carrier or any other contingency of whatever nature beyond Seller’s reasonable control. In such a situation if shipment or delivery is not made during the period contracted for, Buyer shall accept delivery under this contract when shipment is made provided however, Buyer shall not be obligated to accept delivery if shipment is not made with a reasonable time after the cessation of the aforementioned impediments or causes.

SAMPLES

4. Upon completion of the tooling, if sample parts are submitted to Buyer’s approval, Buyer is responsible for the adequacy of its testing and inspection, and it is understood that parts made in accordance with such samples as approved are to be considered as made in compliance with specifications and acceptable to Buyer. All changes made on the original specifications after patterns are started are subject to change for the cost of extra tool work involved.

LIMITED WARRANTY; OTHER LIMITATIONS

5. Seller warrants, to the original Buyer only, that at the time of delivery to Buyer, the products covered hereby conform to the dimensional requirements and metal content requirements set forth in the description and specifications, if any, on the face hereof. ALL OTHER WARRANTIES ARE EXCLUDED AND EXPRESSLY DISCLAIMED, whether express or implied by operation of law, course of dealing, course of performance, usage of trade or otherwise including, but not limited to, all implied warranties of merchantability or fitness for a particular purpose. Buyer’s remedy for breach of warranty is expressly limited to one of the following options to be chosen by Seller in its sole discretion:

(a) replacement of the breaching products at the agreed point of delivery;

(b) repair of the breaching products; or

(c) credit or refund to the Buyer of the price of the breaching products.

Seller reserves the right to inspect parts claimed to be in breach of warranty before the same are returned. Seller will not be responsible for any other losses or costs relating to warranty claims including, without limitation, any costs of labor, or any costs of uninstallation or reinstallation, or charges of any land inclined outside Seller’s plant, or any transportation costs, unless authorized in writing by Customer Service / Sales Department or Quality Department of Seller. Seller is not in any way responsible for tooling furnished to Seller by Buyer.

DELAY OR CANCELLATION

6. Shipping dates are approximate and are based on factory conditions at the time of quotation. Seller shall not be liable for failure or delay in performance due to prior sale of products. In no case will Seller be liable for loss of profits, or any special, incidental or consequential damages on account of any delay in delivery, or non-delivery, whether or not excused hereby.

DELIVERY

7. Unless otherwise stated in writing by Seller, all sales shall be made on an F.O.B. point-of-origin basis, and Buyer shall assume all responsibility and risk of loss in connection with the goods upon delivery thereof to a common carrier. In addition, Buyer shall pay all shipping and handling charges from the Seller’s factory, and all taxes on the sale, delivery or use. If Buyer for any reason declines to receive products ordered when tendered by Seller, or fails to pay amount when due, any unpaid balance of the contract price shall at once become due and payable, and no forbearance or course of dealing will affect this right of Seller. Buyer agrees to accept ten percent over or under the number of parts ordered. To be allowable, claims regarding errors as to number of parts or weight of castings shall be made by Buyer within ten days after receipt thereof, which the parties agree is a reasonable time for such purpose.

FINISHING OPERATIONS

8. Assembly and/or finishing operations, such as, but not limited to, machining, drilling, tapping, reaming, assembling, etc. or polishing, buffing, electro-plating, enameling, painting, etc. are not included in the price quoted herein, unless specifically stated.

INDEMNITY & LIABILITY

9. Notwithstanding anything else to the contrary in this proposal, these Terms and Conditions, the Buyer’s purchase order, the Seller’s acknowledgement, or elsewhere, Seller shall not be liable for any indirect, consequential, incidental, special, punitive, exemplary or liquidated damages, and the total and cumulative liability of Seller arising out of, or in any way connected with, this Transaction or the products supplied hereunder, whether arising in contract, tort (including negligence), strict liability, warranty, indemnity, or otherwise, shall be limited to the price actually paid by Buyer for the products purchased hereunder. Buyer shall indemnify, defend and save Seller and its employees harmless from and against any and all losses, damages, liabilities, penalties, costs and/or expenses (including, without limitation, reasonable attorney’s fees) on account of injuries to or death of any persons or on account of damage to any property arising out of, or in any way connected with, this Transaction or the products supplied hereunder except to the extent such injury, death or damage is caused by or results from the sole negligence of Seller or its employees.

PATTERN EQUIPMENT: DIES, MOLDS, TOOLS AND FIXTURES

10. (a) All quotations on castings shall be exclusive of pattern equipment, which, if requiring fabrication, repairs or alterations, shall be an extra charge to the Buyer. Subject to Buyer’s approval, pattern changes or repairs, which become necessary on account of ordinary wear, shall be made at Buyer’s expense. When the Buyer furnishes skeleton patterns, core boxes, sweeps or combination patterns which increase the cost of castings, an extra charge will be made. Patterns, core boxes and loose pieces thereof shall be properly marked for identification. Buyer shall pay all transportation charges, packing and crating costs, for transportation of patterns to and from the Seller’s plant.

(b) Pattern equipment, whether fabricated by or at Seller’s direction or furnished by Buyer will be held by Seller at Buyer’s risk for Buyer’s work only, and kept in condition for production by Seller during the normal life of same. Buyer shall have the sole responsibility of providing for all insurance coverage on such pattern equipment for damage or loss by fire, theft, or other causality, as long as they are located in Seller’s plant and while they are in transit to or from Seller’s plant.

(c) Pattern equipment shall, however, be subject to any existing legal rights in Seller’s favor, and to liens in Seller’s favor for all sums due for the cost of making, preparing, conditioning or maintaining, and any and all other claims which Seller may have at any time against Buyer, all of which sums and claims shall be paid and discharged before Seller shall be required to deliver such pattern equipment to Buyer. Subject to the foregoing sentence, when molds or dies are paid for they become the property of Buyer. Pattern equipment furnished by Buyer shall be free and clear of all encumbrances, and Buyer will indemnify Seller against any claims (and all costs resulting there from) made by third parties with respect to such pattern equipment.

(d) Seller shall not provide storage space for patterns for which no orders have been received during a period of three years; and notification shall be sent to purchaser for advice as to whether patterns shall be returned or destroyed. If the purchaser does not respond to said notification within a period of 30 days, Seller shall make whatever disposition of the pattern equipment it chooses.

INTELLECTUAL PROPERTY

11. If parts produced on Buyer’s behalf infringe, or are claimed to infringe, patents, copyrights, or any other intellectual property in connection with which claims are made against Seller, Buyer assumes full responsibility for everything done by Seller in producing such parts and agrees to indemnify and hold Seller harmless from and against any and all losses, including, without limitation, expenditures made or incurred for judgments, settlements, attorneys fees, litigation, investigation, negotiation, and any and all losses and disbursements directly or indirectly resulting therefrom.

APPLICABLE LAW / RIGHTS AND REMEDIES OF SELLER

12. (a) Any agreement or dispute arising in relation to this Transaction shall be governed according to the laws of the State of Michigan and any dispute shall be adjudicated in the courts of Michigan.

(b) Nothing in these Terms and Conditions shall be construed so as to limit in any way the rights and remedies available to Seller under the laws of the State of Michigan.

ASSIGNMENT

13. Buyer may not assign any agreement with Seller without Seller’s written consent.

WAIVER & SEVERABILITY

14. Failure by Seller to object to or enforce any breach of contract by Buyer shall not be construed as a waiver of such breach of contract or of any other breach of contract by Buyer. If any provisions of these Terms and Conditions are rendered void or unenforceable by a court of law or any other similar authority then such provisions shall be severed from these Terms and Conditions and the remainder of these Terms and Conditions shall continue in full force and effect.

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