(a) These Terms and Conditions of Sale (the "Terms and Conditions"), together with the terms of any other document in which these Terms and Conditions are attached or are incorporated (collectively, the "Agreement") apply to and include (subject to the provisions herein with respect to inclusion) (i) any quotation, proposal, or offer to sell ("Offer") made by ODL, Inc. or one of its affiliates or subsidiaries (collectively, "Seller") for the sale of Seller's goods and services, if any, related to such goods (collectively, the "Goods") and (ii) any purchase order or related attachments, schedules, exhibits, designs and drawings (collectively, a "Purchase Order"), issued by the buyer-party purchasing the Goods or that party's subsidiaries and affiliates (collectively, "Buyer"). Buyer accepts, and will be deemed to be bound by, the terms of the Agreement upon the first to occur of the following: (A) Buyer's written acknowledgment of the Agreement in writing; (B) Buyer placing a purchase order with Seller; (C) delivery of the Goods by Seller pursuant to any purchase order or similar type of request by Buyer; (D) acceptance of the Goods by Buyer; or (E) payment for the Goods by Buyer. All Offers are subject to Seller's approval if made by a salesperson or sales agent.
(b) Buyer's acceptance is expressly limited to the terms of the Agreement, and the Agreement exclusively governs the sale of Goods by Seller. This Agreement supersedes and excludes any terms and conditions set forth in any purchase order placed by Buyer or any other document issued or deemed to be issued by Buyer to Seller (including, without limitation, Buyer's general terms and conditions of purchase), each of which are expressly rejected. Any reference in the Agreement to any request for quotation, request for proposal or any other similar bid document made by Buyer is solely for the purpose of incorporating the description and specifications of the Goods contained in such document, but only to the extent that such description and specifications do not conflict with the description and specifications contained in the Agreement. Any additional or different terms proposed by Buyer, whether in Buyer's purchase order or otherwise, or any attempt by Buyer to vary the terms of the Agreement in any way, are expressly rejected by Seller, are not part of the Agreement and do not apply to the sale of Goods, and are not binding on Seller without the express prior written acceptance of such terms by Seller's authorized representative.
(c) None of the terms, provisions or conditions of the Agreement may be modified, altered or added to except by written instrument signed by a duly authorized representative of Seller. Any agreed upon change will be subject to an equitable adjustment in the purchase price and/or time for performance.
(a) Price. Prices for the Goods will be as agreed by Seller in a signed writing or, if not agreed, the price specified in the Offer or Seller's price list, as the case may be. Notwithstanding the foregoing, and unless otherwise provided in Seller's written quotation to Buyer, Seller's prices do not include transportation, freight, handling, special handling, delivery and insurance costs or any all federal, state, provincial and local taxes (including sales, use, value-added and excise taxes), assessments, tariffs, duties and any similar fiscal contribution related to the Goods, all of which shall be the sole responsibility of Buyer and payable by Buyer in addition to Seller's price. Prices are based on costs and conditions existing on the date of Seller's Offer and are subject to change at any time in the event of a change in Seller's costs (including raw material), part availability from Seller's vendors or other circumstances beyond Seller's reasonable control. Seller may also adjust prices for Goods at any time to reflect Seller's prices in effect at the time of shipment to Buyer. Buyer shall have no right to access Seller's cost or pricing data or other books and records.
(b) Payment. Buyer will pay for Goods without setoff, recoupment or deduction of any kind, in Canadian funds. Unless otherwise agreed to in writing by Seller, payment for the Goods will be due and payable thirty (30) days following the earlier of (i) Buyer's receipt of Seller's invoice or (ii) Buyer's receipt of the Goods. Buyer will not be entitled to any discount for early payment. When Goods are shipped prepaid with freight to be billed, freight charges are net and subject to payment on presentation of invoice. All amounts due to Seller but not paid by Buyer on the due date will bear interest on the unpaid balance of amounts due at a rate that is equal to 1.5% per month until paid. Buyer agrees to indemnify and hold harmless Seller from any and all legal fees and costs that may be required to collect any overdue balances. Seller may offset, deduct or recoup any amounts owed by Seller or any of its affiliates or subsidiaries to Buyer against any amounts owed by Buyer to Seller or any of its affiliates or subsidiaries. If deliveries of Goods are to be made in installments, the purchase price of each installment shall, at Seller's option, be recoverable as a separate sale. The remedies contained in this Section 2 are cumulative and shall be in addition to any other remedies available to Seller under applicable law.
Delivery dates are estimates only and are not guaranteed by Seller. Title to the Goods will pass to Buyer upon Seller's receipt of full payment. Risk of loss to the Goods will pass to Buyer when the Goods are placed in the possession of Seller's designated carrier; provided, however, that Seller shall retain a purchase-money security interest in the Goods as security for Buyer's performance until payment in full is received. Buyer shall pay or promptly reimburse Seller for all transportation, freight, handling, special handling, delivery and insurance costs and for all provincial and local taxes (including sales, use, value-added and excise taxes), assessments, tariffs, duties and any other fiscal contribution of similar import related to the sale, use, shipment, transportation or delivery of the Goods. All Goods held by Seller beyond the date of completion will be subject to storage charges, for which Buyer shall be solely responsible.
Seller shall not be held liable, or deemed in default, for any failure or delay in fulfilling or performing any of its obligations under the Agreement (including failure to deliver Goods) if such failure or delay is caused by, or results from, acts beyond Seller's reasonable control, including fire, flood, drought, acts of nature, war, hostilities, terrorist threats or acts, riot or other civil unrest, strikes, lockouts, slowdowns or other labor unrest, delay in transportation, shortage of power, unavailability of raw materials, embargo, government action, earthquake, explosion, national or regional emergency, or by acts or omissions of Buyer, including Buyer's failure to promptly comply with the terms of payment.
Buyer will inspect the Goods immediately upon receipt. Unless Buyer provides Seller with written notice stating with specificity any defects, nonconformities or shortage relating to the Goods within twenty four (24) days after receipt of the Goods, such Goods will be deemed fully and finally inspected, checked and accepted by Buyer, and any such claims for defects, nonconformities or shortages will be waived by Buyer. Upon acceptance of Goods, Buyer waives any right to revoke such acceptance for any reason, whether known or unknown to Buyer, at the time of acceptance. Buyer will be limited to any available remedies specifically provided in the Agreement under Section 8 for any defect or nonconformance in the Goods after such acceptance. Seller has a reasonable period of time to cure any nonconformity. Goods may not be returned without Seller's prior written return authorization and, once authorized, Buyer may return the Goods in accordance with instructions issued by Seller. Failure to follow Seller's return procedures may result in lost Goods, delays, additional service, restocking charges, warranty denial or refusal of a shipment. Seller has the right to reject Goods returned without Seller's approval. The foregoing acceptance and return of Goods terms are further subject to Seller's Product Receiving Instructions and Freight Claims.
6. Cancellation and Charges
Buyer may not cancel Purchase Orders, change the timing of scheduled shipments or direct temporary suspension of scheduled shipments without Seller's prior written consent and in no case within thirty (30) days of Seller's estimated shipping date for such Goods. Cancellations of purchase orders or rescheduling of shipments more than thirty (30) days prior to Seller's estimated shipping date may be accepted with Seller's prior written consent and shall be subject to cancellation charges of at least 25% of the Purchase Order value, which includes, but is not limited to, all expenditures (including, without limitation, purchases for raw materials) made and committed for the purchase order. Buyer will also be responsible for the payment of any finished Goods, work-in-progress and all other materials made or committed for the purchase order. All changes to Purchase Orders must be submitted by Buyer to Seller in writing and will not be effective unless and until Seller consents in writing to the change(s). Seller will advise Buyer in writing of the price and/or delivery schedule impact, if any, of the change request. Seller will not be required to accept any changes without Buyer's written acknowledgement of any price and/or delivery schedule adjustments, if any.
Except to the extent provided in a separate written agreement between Buyer and Seller, the Agreement will not be deemed to transfer, assign or license, and Seller will retain all rights, title and interests in and to, any idea, invention, concept, discovery, work of authorship, patent, copyright, trademark, trade secret, know-how, formula, design, engineering drawing, device, compilations of information, manufacturing methods or processes, tooling or other intellectual property embodied, used in or otherwise related to the Goods (collectively "Confidential Information"). Confidential Information shall be kept confidential by Buyer, and shall not be disclosed to third parties without Seller's express written consent. Buyer shall not use any Confidential Information, in whole or in part, or the Goods, to copy, redesign, reverse engineer, replicate or manufacture (or enable manufacture by itself or any third party) all or any portion of the Goods, products similar to the Goods, or products derived from the Goods without Seller's express written consent.
ALL WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED BY SELLER, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ALL OBLIGATIONS OR LIABILITIES ON THE PART OF SELLER FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE, REPAIR OR PERFORMANCE OF THE PRODUCTS. BUYER'S EXCLUSIVE REMEDY AGAINST SELLER, AND SELLER'S SOLE OBLIGATION FOR ANY AND ALL CLAIMS, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO SELLER'S REPLACING OR REPAIRING THE APPLICABLE GOODS OR, AT SELLER'S OPTION, REFUNDING THE PURCHASE PRICE PAID BY BUYER TO SELLER FOR THE APPLICABLE GOODS. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR DAMAGES IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE APPLICABLE GOODS.
IN NO EVENT SHALL SELLER BE LIABLE, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT OR INDIRECT LOST PROFITS OR REVENUE REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
Seller may terminate all or any portion of the Agreement or any purchase order for cause by providing written notice to Buyer specifying the applicable date of termination, upon the occurrence of any one or more of the following events (or a comparable event): (a) Buyer materially breaches the Agreement, and such breach is incapable of cure without risk of future losses or damages to Seller, or with respect to a material breach capable of such cure (other than payment), Buyer does not cure such breach within ten (10) days after receipt of written notice of such breach; (b) Buyer fails to make any payment due to Seller under the Agreement on or before the due date; (c) Buyer (i) becomes insolvent or is unable to pay its debts as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (d) a direct or indirect change in control of Buyer occurs without Seller's prior written consent. Any termination under this Section 10 will be effective on the date of Seller's written notice of termination or such later date as set forth in the notice. Any termination by Seller pursuant to this Section 10 will not give rise to any liability of Seller nor constitute a waiver of any of Seller's rights or remedies under the Agreement or otherwise provided by law.
To the maximum extent allowed by law, Buyer will defend, indemnify and hold harmless Seller and its present and future directors, officers, stockholders, members, employees, attorneys, agents, representatives, parents, affiliates and subsidiaries from and against any and all claims, costs, demands, losses, indirect and direct damages (including lost profits, incidental, consequential and punitive damages), liabilities, causes of action, judgments, settlements, awards, fines, penalties, assessments and expenses (including costs of defense, mediation, settlement and reasonable attorneys' and other professionals' fees and costs), however described or denominated, brought by any third party (including, Buyer's employees, subcontractors, laborers, agents and assigns) arising out or, incidental to, or resulting from: (a) Buyer's negligence, use, ownership, maintenance, transfer, transportation or disposal of Goods; (b) injury to person or property caused by or resulting from the absence of any safety device which has been recommended by Seller or supplied to Buyer but not accepted or installed by Buyer; (c) injury to person or property caused by or resulting from the use of Goods to handle any materials of a hazardous nature or with hazardous characteristics, including, but not limited to, materials that are or may become flammable, explosive, toxic, radioactive or constitute a danger to health; (d) any infringement or alleged infringement of the industrial and intellectual property rights of others arising from Buyer's plans, specifications (including Buyer's trademarks and brand names) or production of Goods ordered by Buyer; (e) Buyer's violation or alleged violation of any federal, state, county or local laws or regulations; (f) any negligent or willful act or omission of Seller or its respective subcontractors, agents, employees or other representatives; or (g) Buyer's breach of the Agreement.
The Goods may be subject to export controls and regulations of the U.S., the country of manufacture or the country of shipment, and such export may require a valid export license. Seller's acceptance of Buyer's Purchase Order and delivery of the Goods is conditioned on Buyer's compliance with applicable export controls. Seller will have no obligation to sell or deliver any Good until all required U.S. and/or other export licenses have been granted and there are no other impediments arising from any applicable export regulations. No Goods sold to Buyer may be exported or re-exported unless such export or re-export complies fully with all applicable export regulations.
Except to the extent Seller has consented in a signed writing, Buyer will not advertise or publish that Buyer has purchased Goods from Seller or use any of Seller's trademarks or trade names in Buyer's advertising or promotional materials.
(a) Notices. All notices, claims and other communications to Seller required or permitted under the Agreement will be made in writing and will be effective only upon receipt by Seller. Buyer's failure to provide any notice, claim or other communications to Buyer in the manner and within the time period specified in the Agreement will constitute a waiver by Buyer of any and all rights and remedies that otherwise would have been available to Buyer upon making such notice, claim or other communication.
(b) Entire agreement. The Agreement, including any attachments, exhibits or supplements attached hereto, and other matter incorporated herein by specific reference, constitutes the entire agreement between Seller and Buyer with respect to the subject matter of the Agreement and supersedes all prior or contemporaneous oral or written discussions, understandings, representations and agreements.
(c) Remedies. Seller reserves and does not waive any claims, rights and remedies that it may have under any the Agreement, any other agreements between Buyer and Seller and applicable law, including the right to recover from Buyer any and all damages (including incidental and consequential damages), costs or expenses (including attorneys' or other professionals' fees and labor, material and apportionable overhead costs and expenses) incurred by Seller on account of Buyer's breach of the Agreement (including any cancellation by Buyer of the Agreement or any purchase order placed by Buyer pursuant to the Agreement).
(d) Assignment. Buyer may not assign the Agreement or assign or delegate it rights or obligations under the Agreement without Seller's prior written consent. Any purported assignment in violation of this section will be null and void and of no force or effect.
(e) Governing law; venue. This Agreement, and all related documents and matters arising out of or relating to the Agreement, are governed by, and will be construed in accordance with, the laws of the State of Michigan, without regard to any conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from applying to the Agreement or any Purchase Order. Seller and Buyer each irrevocably and unconditionally agree that the sole and exclusive forum and venue for any legal or equitable action or proceeding arising out of or in connection with the Agreement will lie in the United States District Court for the Western District of Michigan, the courts in the State of Michigan sitting in Ottawa County, and any appellate court with jurisdiction over such courts. Each party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and Buyer agrees not to bring any action, litigation or proceeding in any other court.
(f) Relationship of parties. Seller and Buyer are independent contracting parties and nothing in the Agreement will make either party the agent or legal representative of the other for any purpose, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
(g) No third party beneficiary. Except as otherwise provided, Buyer acknowledges and agrees that the rights and interests of the parties under the Agreement are intended to solely benefit Seller and Buyer.
(h) Interpretation. For purposes of the Agreement: (i) whenever the word "including" (or any variation thereof) is used, it is deemed to be followed by the words "without limitation"; (ii) the word "or" is not exclusive; (iii) section headings are for convenience or reference only, and do not affect the meaning of the Agreement; and (iv) any agreement, instrument, statute, law, regulation or rule defined or referred to herein shall be deemed to mean such agreement, instrument, statute, law, regulation or rule as from time to time amended, modified or supplemented, and includes, in the case of agreements and instruments, references to all attachments thereto and instruments incorporated therein. No provision in the Agreement may be construed against Seller as the drafting party.
(i) Survival. To the extent that any provisions of the Agreement are meant to remain valid after the Agreement has terminated, expired or otherwise ended, such provisions have continued validity even after termination.
(j) CONSULTATION WITH COUNSEL. BUYER AND SELLER ACKNOWLEDGE THAT THEY HAVE BEEN GIVEN THE OPPORTUNITY TO CONSULT WITH COUNSEL OF THEIR CHOICE BEFORE ENTERING INTO THIS AGREEMENT AND ARE DOING SO WITHOUT DURESS, INTIMIDATION, OR COERCION AND WITHOUT RELIANCE UPON ANY REPRESENTATIONS, WARRANTIES OR COMMITMENTS OTHER THAN THOSE REPRESENTATIONS, WARRANTIES OR COMMITMENTS SET FORTH IN THIS AGREEMENT.
(k) JURY TRAIL WAIVER. BUYER AND SELLER ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH OF BUYER AND SELLER, AFTER CONSULTING (OR HAVING THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER DOCUMENT PERTAINING TO THIS AGREEMENT.