I. GENERAL PROVISIONS AND CONDITIONS
A. NATURE OF CONTRACT AND NAMES OF PARTIES. This agreement (“Agreement”) between Tank Components Industries (“TCI”) and Buyer is for the sale of goods (“Goods”). TCI recognizes that Buyer may desire to use its own acknowledgement form to reflect this agreement; however, any provisions in Buyer’s acknowledgement form which modify, conflict with or contradict any provisions of this Agreement, shall not be binding between the parties. An acceptance of any of the Goods covered by this Agreement and TCI’s Order Acknowledgement shall constitute an acceptance of these terms and conditions and shall constitute the entire understanding between TCI and Buyer.
B. INTEGRATED AGREEMENT. All orders are subject to approval by TCI at its offices in Springfield, Missouri. The parties agree and understand that no waiver or alteration of terms contained in this Agreement, including but not limited to any verbal alteration or agreement between Buyer and any agent of TCI, shall bind TCI unless in writing, signed by an executive officer of TCI. No course of prior dealings between the parties and no usage of the trade shall supplement or explain any term used in this Agreement. Buyer acknowledges that it has not relied upon any sample, model, description or exact technical specifications in placing its order. The parties intend the terms of this Agreement and the TCI’s Order Acknowledgement to be the final, complete and exclusive expression of their agreement.
C. TERMINATION, CANCELLATION CHARGES. TCI reserves the right to begin production of orders and/or to ship Goods in stock immediately unless specifically requested otherwise. Buyer may not terminate, modify, cancel, or defer shipment of the Goods under this Agreement, except with TCI’s prior written consent and subject to conditions then agreed upon. Cancellation will involve cancellation charges for all work performed, including but not limited to engineering and production work, up to receipt of written cancellation provided by Buyer to TCI. Buyer agrees to pay these charges as a condition of sale.
D. GOVERNING LAW, VENUE, JURISDICTION. The laws of the state of Ohio shall govern this Agreement, the construction of its terms, and the interpretation of all rights and duties of Buyer and TCI. Buyer agrees that venue shall lie in Summit County, Ohio. Buyer and TCI agree that they are amenable to suit in Ohio, and therefore, subject themselves to the jurisdiction of the state courts in Ohio by entering into this Agreement.
E. STATUTE OF LIMITATIONS. Pursuant to Ohio Revised Code Section 1302.98, the parties agree that an action for breach of this Agreement, or any other cause of action arising from this Agreement, must be commenced if at all within one year from when the cause of action accrued. Notwithstanding the foregoing, Buyer agrees to bring any cause of action for breach of warranty as provided in Section IV (A) of this Agreement within one (1) year from the date of shipment of the Goods.
F. WAIVER. Neither the parties nor any interpreting legal authority shall construe any failure of TCI to demand rigid adherence to one or more of this Agreement’s provisions, on one or more occasions, as a waiver or deprive TCI of the right to insist upon strict compliance in the future.
G. BINDING EFFECT, ASSIGNMENT. This Agreement shall bind and inure to the benefit of the parties and their successors and assigns; provided, however, that Buyer may not assign or transfer this Agreement, in whole or in part, except with the prior written consent of TCI.
H. LEGAL CONSTRUCTION. In case any one or more of the provisions contained in this Agreement are held to be invalid, illegal, or unenforceable in any respect, the invalidity, illegality, or unenforceability shall not affect any other provision and this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained in it.
I. EQUAL EMPLOYMENT OPPORTUNITY. The parties incorporate herein by reference the Equal Opportunity clause, Section 202 of Executive Order 11246, as amended, relative to equal employment opportunities and implementing rules and regulations of the Secretary of Labor.
II. PACKAGING, SHIPMENT, RISK OF LOSS, DELIVERY
A. PACKAGING. TCI bases it prices on TCI’s standard packaging. TCI shall package the Goods in standard commercial packaging that is acceptable to commercial carrier. TCI shall furnish special customer packaging only upon Buyer’s written request and Buyer shall bear the cost for any special packing requirements. Buyer agrees to hold TCI harmless for any damage to the Goods caused by Buyer’s special packaging requirements.
B. SHIPMENT, RISK OF LOSS. TCI ships all Goods F.O.B. TCI’s plant, Springfield, Missouri, unless otherwise specifically set forth in this Agreement or TCI’s Order Acknowledgment. The risk of loss passes to Buyer upon TCI’s delivery to a common carrier for shipment to Buyer. Buyer shall make any claims for losses or damage occurring after TCI’s delivery to carrier directly to carrier. TCI may treat each shipment made as a separate transaction. TCI shall not be responsible for insuring shipments unless specifically requested by Purchaser and any insurance so requested shall be at Purchaser’s expenses and valuation.
C. DELIVERY. Unless expressly specified to the contrary, TCI shall ship Goods as soon as practicable. Shipping dates represent TCI’s best estimate and are approximate based upon current availability of materials, present productions schedules, and prompt receipt of all necessary information. Failure to meet these dates shall not constitute default by TCI nor shall TCI be liable for any failure to perform by reason of causes beyond its control. These causes include, but are not limited to, storms, floods, fires, accidents, wars, shortages of fuel, materials, transportation facilities, labor disputes and shortages, legislative action, judicial action and acts of God. In the event of any delay or nonperformance, TCI may at its option and without liability, upon written notice to Buyer, cancel all or any portion of this Agreement and/or extend any date upon which any performance under this Agreement is due.
III. PRICE, PAYMENT TERMS, INTEREST, COLLECTION FEES & COSTS, TITLE, SECURITY INTEREST, RETURNS
A. PRICE. The price for the Goods that are the subject matter of this Agreement are set forth on TCI’s Order Acknowledgement. Prices stated are subject to change without notice in the event of: (i) alterations in specifications, quantities, designs, or delivery schedules; (ii) increases in the cost of fuel, power, material, supplies, or labor; and/or (iii) foreign or domestic legislation enacted by any level of government, including tax legislation, which increases the cost of producing, warehousing, or selling the Goods purchased by Buyer. Buyer shall receive no discount from TCI on the Goods purchased unless TCI specifically sets forth a discount on TCI’s Order Acknowledgement. Prices do not include federal, state or local taxes as applicable and TCI will add these taxes to the sales price when TCI is legally obligated to collect the taxes unless Buyer provides TCI with a proper tax exemption certificate. If TCI pays any taxes on the Goods, Buyer shall immediately reimburse TCI for any tax payment upon demand. All prices are subject to correction for stenographic, typographic and clerical errors. Buyer shall be assessed with all shipping, delivery, storage, warehousing, and credit card processing fees associated with the Purchase Orders unless such fees are waived by TCI.
B. PAYMENT TERMS, CREDIT. The terms of payment are net thirty (30) days from the date of invoice, unless TCI and Buyer otherwise agree. TCI extends credit purely at its discretion. If in TCI’s judgment, Buyer’s financial condition does not justify the terms of payment specified, TCI may at its option (1) cancel this Agreement; or (2) refuse to perform further under this Agreement and/or TCI’s Order Acknowledgement unless Buyer shall immediately pay for all Goods which TCI has delivered to Buyer. TCI is not liable for breach or nonperformance of contract, in whole or in part, as a result of its refusal to perform.
C. INTEREST, COLLECTION FEES & COSTS, TITLE, SECURITY INTEREST. Buyer agrees to pay a delinquency charge of 2% per month (24% per annum) on any outstanding balances owed by Buyer from the invoice date until Buyer renders payment in full. If TCI must pursue legal action against Buyer to collect any amounts owed by Buyer to TCI, Buyer agrees to pay TCI’s expenses, including reasonable attorneys’ fees, incurred as a result of the legal action. Until Buyer pays TCI the purchase price and all other sums due in full, TCI retains title to all Goods shipped by TCI to Buyer. TCI may, at its discretion, require additional security from Buyer on any amount due to TCI for Goods shipped from TCI to Buyer, and thus TCI may file a UCC financing statement, or any other document permitted by law, to obtain a security interest in the Goods and in all proceeds of the Goods. Buyer irrevocably authorizes TCI to execute and file a UCC financing statement, or any other document permitted by law, for this purpose.
D. RETURNS. TCI will not accept Goods returned for credit without TCI’s permission. Buyer must contact TCI to obtain an RMA number to return any Goods and at that time TCI will issue an RMA number to Buyer. All returned Goods require an RMA number, and TCI reserves the right to reject any returned Goods without an RMA number. All returned Goods are subject to a restocking charge, which charge varies depending upon the type of Goods returned. All Goods returned for warranty issues are subject to inspection at TCI’s location in Springfield, Missouri. TCI will not issue any refunds prior to TCI’s receipt of the returned Goods. TCI only accepts returned Goods within 30 days from shipment date.
IV. WARRANTY, LIMITATION OF LIABILITY, INDEMNIFICATION
A. LIMITED WARRANTY. THE FOLLOWING WARRANTY FROM TCI IS EXPRESSED IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF TCI.
TCI NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF THE GOODS OF TCI.
TCI WARRANTS THAT THE GOODS DESCRIBED IN THIS WARRANTY ARE FREE FROM DEFECTS IN WORKMANSHIP AND MATERIALS FOR A PERIOD OF EIGHTEEN (18) MONTHS FROM DATE OF SHIPMENT. If Buyer finds any of the Goods defective, Buyer’s sole and exclusive remedy and TCI’s sole and exclusive obligation shall be, at TCI’s option, replacement or repair of the Goods. This exclusive remedy shall not fail for its essential purpose so long as TCI is willing and able to repair or replace defective Goods in the prescribed manner.
IF TCI MANUFACTURES THE GOODS ACCORDING TO BUYER’S SPECIFICATIONS, TCI DOES NOT WARRANT THE ADEQUACY OF BUYER’S SPECIFICATIONS OR THAT THE GOODS WILL PERFORM IN ACCORDANCE WITH BUYER’S SPECIFICATIONS. TCI DOES NOT WARRANT GOODS SOLD BY TCI BUT NOT MANUFACTURED BY TCI. THIS WARRANTY DOES NOT COVER LABOR OR OTHER COSTS OR EXPENSES TO REMOVE OR INSTALL ANY DEFECTIVE, REPAIRED OR REPLACED GOODS.
The parties expressly acknowledge that any technical advice that TCI furnishes to Buyer with respect to the use of the Goods, TCI provides without charge, and TCI assumes no obligation or liability for the advice given or the results obtained, and Buyer accepts any advice that TCI provides at Buyer’s sole risk. This warranty is void in the event that anyone other than the TCI makes repairs to the Goods without prior written authorization from TCI.
If Buyer seeks rejection of the Goods delivered for nonconformity with TCI’s Order Acknowledgement and/or packing list discrepancies, Buyer must send written notification to TCI of the rejection of the Goods within ten (10) days after delivery of the Goods to Buyer. This notification shall state the basis of the alleged conformity and a description of the shipment rejected. Buyer’s failure to send written notification within ten (10) days after delivery shall result in TCI deeming that no nonconformities or packing list discrepancies existed at the time of delivery to Buyer.
B. LIMITATION OF LIABILITY. Pursuant to Ohio Revised Code Sections 1302.29 and 1302.93 TCI’s liability for Buyer’s damages is limited in the event of a breach or repudiation of this Agreement or TCI’s Order Acknowledgement. TCI’S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) FOR ITS GOODS IS LIMITED TO REPAIRING OR REPLACING GOODS FOUND BY TCI AS DEFECTIVE, OR AT TCI’S OPTION, TO REFUNDING THE PURCHASE PRICE OF THE GOODS OR PARTS. AT TCI’S REQUEST, BUYER WILL SEND, AT BUYER’S SOLE EXPENSE, ANY ALLEGEDLY DEFECTIVE PARTS TO THE PLANT OF TCI. BUYER SHALL NOT BE ENTITLED TO RECOVER INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING THOSE ARISING OUT OF OR UPON THE RIGHTS RAISED OUT OF A CLAIMED BREACH OF WARRANTY, BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY, WARRANTY FOR A PARTICULAR PURPOSE OR USE, OR ANY LOSSES, COSTS, EXPENSES, LIABILITIES AND DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, INCOME OR PROFITS, LOSSES SUSTAINED AS THE RESULT OF INJURY (INCLUDING DEATH) TO ANY PERSON, LOSS OF OR DAMAGE TO PROPERTY, ALL LIABILITIES OF BUYER TO ITS CUSTOMERS OR THIRD PERSONS, AND ALL OTHER SPECIAL OR CONSEQUENTIAL DAMAGES) WHETHER DIRECT OR INDIRECT, AND WHETHER RESULTING FROM, OR CONTRIBUTED TO BY THE DEFAULT OR NEGLIGENCE OF TCI, ITS AGENTS, EMPLOYEES, OR SUBCONTRACTORS, WHICH MIGHT BE CLAIMED AS THE RESULT OF THE USE, MISUSE OR FAILURE OF THE GOODS DELIVERED. Additionally, Buyer shall not be entitled to recover any costs for materials expended or used, initiated at the request of Buyer. TCI’s liability on its warranty shall in no event exceed its cost of correcting the defects in the equipment sold or replacing the same with non-defective parts.
C. IDEMNIFICATION. Buyer agrees to indemnify and hold harmless TCI and its affiliates, officers, directors, agents, and employees from and against all claims, including third party claims, for bodily injury, illness, death or property damage, liabilities, damages, losses and expenses, including attorneys’ fees, arising:
(1) from the purchase, use or misuse of the Goods by Buyer, Buyer’s customers or any other party; (2) the infringement of any United States patent, copyright, trade secret, trademark or similar intellectual property rights, arising from the manufacture of the Goods in accordance with Buyer furnished specifications or from the sale thereof; or (3) out of the performance of this Agreement.
VIII. INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY
A. INTELLECTUAL PROPERTY RIGHTS. TCI shall retain all intellectual property rights to the Goods that are the subject matter of this Agreement and TCI’s Order Acknowledgement. Buyer’s purchase of the Goods does not entitle Buyer to any right, title or interest in TCI’s intellectual property rights. TCI’s intellectual property rights include, but are not limited to patent, trademark, trade name and copyright rights. Specifically, TCI retains the right to file for patent protection under 35 U.S.C. §1 et seq. for the Goods which are the subject matter of this Agreement. TCI and Purchaser shall jointly possess all intellectual property rights for any products manufactured by Purchaser that incorporates the products purchased from TCI.
B. CONFIDENTIALITY. Buyer shall consider confidential the Goods and all specifications, drawings, prototype articles and information furnished by TCI or prepared by TCI for Buyer in connection with this Agreement and TCI’s Order Acknowledgement. Buyer shall not disclose this information to any other person or use this information itself for any purpose other than performing under this Agreement without TCI’s prior written permission. Buyer shall not disclose any information relating to this Agreement without TCI’s prior written permission.