TERMS AND CONDITIONS OF PURCHASE
MODERN ALUMINUM CASTINGS CO INC.’S (“MACC”) OFFER TO PURCHASE ANY SELLER (AS DEFINED IN THE PURCHASE ORDER AND INCLUDING ANY PARENT, SUBSIDIARY OR AFFILIATE OF SELLER) PRODUCT, GOOD OR SERVICE (COLLECTIVELY “GOODS”) IS EXPRESSLY CONDITIONED ON SELLER’S ASSENT TO AND ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS AS WELL ANY OTHER TERMS AND CONDITIONS CONTAINED ON MACC’S PURCHASE ORDER, SCHEDULING AGREEMENT AND/OR RELEASE (COLLECTIVELY REFERRED TO AS “THE TERMS AND CONDITIONS OF PURCHASE”). ANY OTHER TERMS OR CONDITIONS OTHER THAN THOSE ARE REJECTED UNLESS EXPRESSLY ACCEPTED IN WRITING IN A DOCUMENT CONSPICUOUSLY REFERENCING THE INTENT TO AMEND THE TERMS AND CONDITIONS OF PURCHASE BY A DULY AUTHORIZED REPRESENTATIVE OF MACC.
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ACCEPTANCE. These Terms and Conditions of Purchase form the basis of the agreement between MACC and Seller. Any other terms or conditions proposed or stated by Seller (verbally or in writing), including but not limited to those contained in, any quote, request for proposal, order acknowledgement or invoice, are rejected unless expressly accepted in writing in a document expressly referencing the amendment of these Terms and Conditions of Purchase by a duly authorized representative of MACC. If Seller’s offer to sell is conditioned upon MACC’s adherence to Seller’s terms and conditions, then these Terms and Conditions of Purchase shall operate as a counteroffer, expressly conditioned upon the Seller’s acceptance of these Terms and Conditions of Purchase. Whether these Terms and Conditions of Purchase operate as an acceptance or a counteroffer, the sale and/or provision by Seller of any Goods provided hereunder constitutes acceptance by Seller of these Terms and Conditions of Purchase and as a relinquishment and waiver of any right to limit acceptance or to object to these Terms and Conditions of Purchase under the Uniform Commercial Code.
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PRICE. The price to be charged to MACC by Seller is the price stated on MACC’s purchase order. Unless otherwise stated on MACC’s purchase order, payment terms shall be net thirty (30) days from the date MACC receives the invoice. Seller understands and agrees that it is Seller’s sole obligation and responsibility to manage its supply chain, including but not limited to its raw material availability and costs, labor and shipping costs. Under no circumstances, regardless of reason, shall Seller be entitled to increase prices on accepted purchase orders to account for increases in its costs of supply or production.
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SHIPMENT AND RISK OF LOSS. All deliveries shall be made to MACC F.O.B. MACC’s facility in Terre Haute, Indiana or as otherwise directed by MACC for that particular purchase order. All freight, transportation, insurance, duties, taxes and handling charges shall be invoiced to and promptly paid by Seller.
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DELIVERY SCHEDULES. Time is of the essence, and deliveries shall be made in quantities and at times and locations specified in MACC’s purchase orders. Seller shall use commercially reasonable efforts to timely fill MACC’s purchase orders. If, in order to provide a timely shipment, Seller is required to use a more expeditious manner of shipping than originally anticipated, Seller shall be required to do so at Seller’s sole expense. Seller may not charge any premium unless approved in writing by MACC prior to shipment. MACC is not required to make payment for Goods delivered to MACC that are in excess of quantities specified on MACC’s delivery schedules or in subsequent purchase orders, unless agreed to in writing in advance of the shipment. MACC may change the rate of scheduled shipments or direct temporary suspension of scheduled shipments, neither of which shall entitle Seller to a modification of the price.
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TITLE. Title to the Goods shall vest in MACC when the Goods have been delivered at the FOB point. Seller shall convey to MACC good title to the Goods free and clear of all liens, security interests, and encumbrances of any nature whatsoever. Seller assumes risk of damage or loss of the Goods until they are delivered at the MACC Facility.
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INSPECTION AND REJECTION. Seller acknowledges that MACC is not required to perform any inspection of the Goods upon delivery. Should MACC identify any nonconforming Goods, it shall notify Seller within a reasonable time. However, MACC's failure to perform any inspection and/or provide notice of nonconformance shall not constitute acceptance of the Goods or waiver of its rights of inspection and rejection.
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RETURNS. Unused or defective Goods may be returned by MACC for credit or reimbursement, at MACC’s option. If reimbursement is selected, then the refunded purchase price for the returned Goods shall be paid within thirty (30) days of receipt of the returned items. For defective returned Goods, Seller shall reimburse MACC for any associated return costs.
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SETOFF. MACC shall have a right to setoff any amounts which become payable to Seller under this agreement or otherwise to satisfy.
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CHANGES OR CANCELLATION OF ORDERS. MACC reserves the right at any time to direct changes, or cause Seller to make changes, to drawings and specifications of the Goods. Seller agrees to promptly make such changes. Any difference in price or time for performance resulting from such changes shall be equitably adjusted by MACC after receipt of documentation in such form and detail as MACC may direct. Minor design changes are contemplated and will not result in price increases. Major changes will be reviewed jointly for cost impacts prior to the approval of the change. Seller will be required to provide full disclosure of price details, piece price and tooling. No increase of any kind will be allowed without the prior written approval of MACC.
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AUTHORIZATION TO USE MARKS AND COPYRIGHTED MATERIAL. MACC is hereby authorized by Seller to include Seller marks in conjunction with MACC’s promotion and sale of any products incorporating or made with Goods during the term of this Agreement. Except as expressly set forth herein, Seller retains all rights to all of its other trademarks and other intellectual property rights, and no licenses or other rights thereto are granted or otherwise provided to MACC.
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PAST-DUE PRODUCTS. Goods shipped by Seller to MACC more than ten (10) working days past the original purchase order due date will result in a credit to MACC equal to ten percent (10%) of the total cost of those Goods shipped past-due on the associated purchase order. The original purchase order due date which this provision will be based upon is the accepted due date as confirmed to MACC. Seller will maintain an inventory level equal to 2 weeks of MACC usage. Upon request by Seller, as frequently as once per month, MACC will provide inventory levels and recent usage for Goods.
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LIMITATION OF LIABILITY. FOR ANY ACTION PREMISED ON OR RELATED TO THE GOODS, SUPPLY OF GOODS OR THE BREACH OF THE TERMS AND CONDITIONS OF PURCHASE, MACC SHALL NOT BE LIABLE TO SELLER OR ANY THIRD PARTY UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF INCOME, PROFITS OR PRODUCTION; ANY INCREASES IN THE COST OF OPERATIONS OR RAW MATERIALS OR DAMAGES TO MATERIAL.
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WARRANTY. Seller warrants to MACC that all Goods will meet the specifications set forth by MACC and THOSE represented by Seller at the time of purchase order acceptance. In the event that Goods do not meet specifications, Seller shall (i) repair or replace Goods that do not meet specifications, (ii) be responsible for freight charges incurred to remedy Goods, and (iii) be responsible for labor costs incurred to remedy Goods. Seller warrants that all Goods shall be manufactured using only 100% prime certified virgin material. Seller shall conduct testing on all incoming raw material once it has been processed. Manufacturing lot numbers and traceability will be maintained. Seller will maintain sample retains from each production run on an hourly basis for a period of twelve months, after which they shall be destroyed. Seller shall provide MACC with samples upon request. Seller shall supply MACC with profile control plans for Goods.
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REMEDIES. Seller acknowledges and agrees that the damages which will be suffered by MACC by a breach of Terms and Conditions of Purchase may be continuing, irreparable and difficult to ascertain in monetary worth. Consequently, in addition to any action at law for damages, Seller agrees that MACC may obtain injunctive relief in order to enforce the performance of and adherence to the Terms and Conditions of Purchase, and also agrees to waive any requirement of MACC to post bond relating to any injunctive relief action.
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DEFENSE, INDEMNIFICATION AND HOLD HARMLESS. Seller agrees to indemnify, defend and otherwise hold MACC and MACC's parent(s), subsidiaries, divisions, affiliated companies and their respective directors, officers, agents, insurers, employees and representatives (collectively referred to as the "MACC Group") harmless from and against all liens, claims, damages, charges, injuries, losses, actions, suits, proceedings, product liability actions, wrongful death actions, warranty actions, breach of contract actions, privacy and defamation actions, loss of consortium claims, expenses, attorney fees or any other personal or property right claims, brought by third parties allegedly arising out of, involving or relating to the Goods (including, but not limited to claims of defective design, manufacturing, warning or the like), or any breach of Seller’s responsibilities. This indemnity, defense and hold harmless agreement applies even if the act or omission complained of in the action was allegedly caused in whole or in part by the strict liability or negligence in any form of the MACC Group.
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NAFTA; Customs; Import/Export Controls. Seller shall ensure and furnish MACC accurate and complete documentation to prove compliance with all applicable federal, state, or local laws and executive orders and regulations issued pursuant thereto applicable to the design, manufacture, import, and sale of the Goods. Seller shall furnish MACC accurate and complete documentation to prove compliance with North American Free Trade Agreement documentation for all Goods in accordance with applicable laws and regulations. In the fourth quarter of each calendar year, MACC will solicit this documentation from Seller. Seller will respond to this solicitation with all required information by the requested completion date. Seller agrees to indemnify MACC and/or its dealers against all loss resulting directly or indirectly from Seller delay in furnishing such certificates to MACC and from incorrect information therein furnished by Seller.
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GOVERNMENT ACTION/RECALL. Seller shall promptly inform MACC of any inquiry or formal complaint by any governmental agency relating to a Product and of any voluntary and/or governmentally-mandated product recall. To the extent MACC becomes involved in any Product recall or investigation, Seller shall compensate and/or reimburse MACC for MACC’s reasonable time and expenses incurred in connection with such recall or investigation.
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FORCE MAJEURE. Notwithstanding any provision hereof to the contrary, MACC shall not be in default or liable for any delay or prevention in performance arising by reason of circumstances that are in whole or in part beyond the reasonable control of MACC, including but not limited to fire, flood, acts of God, labor disputes, civil unrest, terrorist acts, shortage of and/or inability to reasonably secure necessary raw materials, resources or sufficient workforce, pandemic, epidemic, disease (or reasonable fear thereof) state of war or conflict or acts of governments. Upon such force majeure, MACC may either delay performance until the force majeure ceases and performance is feasible or may cancel performance altogether, in either case without incurring liability and/or being responsible for any damages. Risk of expense caused by this clause will be borne by the Seller.
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ATTORNEY'S FEES. In the event MACC prevails in any action arising out of or related to these Terms and Conditions of Purchase and/or related to any Goods, Seller agrees that MACC shall be entitled to award of its reasonable attorney's fees and court costs incurred and/or associated with such proceedings.
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GOVERNING LAW; CHOICE OF FORUM. In the event of any dispute hereunder, the laws of the State of Indiana shall govern the validity, performance, enforcement and any other aspect of these Terms and Conditions of Purchase notwithstanding any other jurisdiction’s choice of law rules to the contrary. The parties agree that the exclusive jurisdiction and venue for any action of any type related to these Terms and Conditions of Purchase or the Goods shall be the Indiana Commercial Court located in Vigo County, Indiana or, if the Commercial Court does not exist, in a state or Federal court located in Vigo County, Indiana.
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RELATIONSHIP OF PARTIES. MACC and Seller are independent contracting parties and nothing in these Terms and conditions of Purchase will make either party the agent, partner, joint venturer 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.
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SEVERABILITY, TERMINATION. Should any paragraph, sentence, term or other provision of these Terms and Conditions of Purchase be invalid or unenforceable under the law of the place where it is to be performed or be declared invalid or unenforceable by a court or other competent authority having jurisdiction over the matter, MACC may elect to either: (i) terminate this agreement if not fully performed by it, or (ii) consider this agreement severable as to such provision, and such provision shall thereafter be deemed severed and inoperative. In such latter event, the remainder of this agreement shall be in full force and effect as if such severed provision were never a part of the same.
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WAIVER OF BREACH. Failure of MACC to enforce any of the terms, conditions and limitations of these Terms and Conditions of Purchase shall not be construed as a waiver thereof or a waiver of any other terms, conditions or limitations herein or on the face hereof, and the failure of MACC to exercise any rights arising from default of Seller or otherwise shall not be deemed to be a waiver of such right or any other right. The terms, conditions and limitations herein and on the face hereof may be enforced and the rights of MACC may be enforced at any time in whole or in part.
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LIMITATIONS ON ACTIONS. Any action by or on behalf of Seller or its successors or assigns for breach of these Terms and Conditions of Purchase and/or related to the Goods must be commenced within one year after the cause of action has accrued.
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ASSIGNMENT: The Terms and Conditions of Purchase is not assignable by Seller without MACC's prior written approval; to the extent assigned all of the Terms and Conditions of Purchase shall be binding upon the parties hereto and their heirs, successors and assigns.
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NO IMPLIED WAIVER: The failure of MACC at any time to require performance by Seller of any provision of this Agreement shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision.
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NO AGENCY: Seller shall not be deemed to be an agent or legal representative of MACC, nor is any joint venture or partnership relationship hereby created and Seller is not authorized to create any obligation on behalf of MACC.
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ENTIRE AGREEMENT; AMENDMENTS. These Terms and Conditions of Purchase constitute the entire agreement between MACC and Seller with respect to the matter contained herein and supersedes all prior oral and written representations and agreements. These Terms and Conditions of Purchase may only be amended by an agreement in writing signed by MACC and Seller.
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