TERMS AND CONDITIONS OF SALE
1. WEIGHTS MEASUREMENT OF SHIPMENTS: Seller’s stipulated weight of any product sold to Buyer shall be conclusive evidence of the weight thereof unless Buyer provides written evidence to the contrary within ten (10) days receiving the applicable product. Unless otherwise agreed to in writing by Seller and Buyer, delivery of not less than ninety percent (90%), or not more than one hundred ten percent (110%), of any product will be considered complete fulfillment of said order and the parties shall adjust the applicable purchase price equitably. Buyer shall promptly unload each truck, bulk truck, or a rail carload of the product upon delivery at the Buyer’s facility.
2. TERMS OF PAYMENT: Net cash due within thirty (30) days from date of shipment. All amounts payable hereunder shall be paid in lawful money of the U.S. in cash or negotiable paper collectible at its face value at Seller’s location to which payment is to be made as directed in Seller’s invoice. Interest is charged on past due accounts at 1.5% per month or such other maximum rate allowed by law.
3. TAXES: Any tax, tariff, or other governmental charge, including any increases thereof, hereafter becoming effective which increases the cost to Seller of producing, selling or delivering the product, or of procuring materials used therein, or any-tax now in effect (or increase in same) payable by Seller because of the sale of the product, such as, but not limited to, sales tax, use tax, retailer’s occupational tax, or gross receipts tax, may, at Seller’s option, be added to the purchase price herein specified. Nothing herein shall be construed to permit Seller to affect an increase to an applicable purchase price by reason of the imposition or increase in any corporate net income tax by any federal, state, or local taxing entity, or authority.
4. WARRANTIES: Seller expressly warrants that the product sold will meet Buyer’s standard specifications, provided such specifications were provided to Seller in writing prior to the issuance of an applicable purchase order. EXCEPT FOR THE WARRANTY IN THE IMMEDIATELY PRECEDING SENTENCE, SELLER MAKES NO FURTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, RELATING TO THE PRODUCT, WHETHER USED ALONE OR IN COMBINATION WITH OTHER SUBSTANCES; AND SELLER SPECIFICALLY EXCLUDES ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY OF MERCHANTABILITY. BUYER ASSUMES ALL RISK AND LIABILITY RESULTING FROM THE USE OF THE PRODUCTS DELIVERED AS PART OF THIS SALE, WHETHER USED SINGULARLY OR IN COMBINATION WITH OTHER PRODUCTS. BUYER AFFIRMS THAT THEY HAVE NOT RELIED UPON SELLER’S SKILL OR JUDGMENT IN FURNISHING OR SELECTING PRODUCTS SUITABLE FOR ANY PARTICULAR PURPOSE, AND BUYER ASSUMES THE RESPONSIBILITY FOR UNDERTAKING ALL INSPECTION AND TESTING NECESSARY TO DETERMINE FITNESS FOR EACH PRODUCT PURCHASE PURSUANT TO THESE TERMS AND CONDITIONS. SELLER HEREBY DISCLAIMS ALL LIABILITY FOR LOSS OCCASIONED BY INJURY OR DAMAGE TO PERSONS OR PROPERTY ARISING OUT OF THE USE, HANDLING OR POSSESSION OF ANY PRODUCT PURCHASED BY BUYER.
5. LOSS, DEFECT OR DAMAGE: Notice of rejection of nonconforming product must be given to the Seller by the Buyer in writing within ten (10) days after receipt of the product and all defects ascertainable at the time of giving of said notice shall be stated with particularity or be deemed waived. Buyer’s failure to give notice of any claim within said ten (10) days shall constitute an unqualified acceptance of the product and a waiver by the Buyer of all claims with respect thereto. All rejected product(s) shall be held by Buyer for inspection. Demurrage shall be for the Buyer’s account if the product does conform. If the product does not conform, it shall be held by the Buyer (for no longer than thirty (30) days, pending instructions for disposal from Seller (at Seller’s expense). In the event of nonconformity of the product, the Buyer’s exclusive remedy shall be a rejection of the product and, at Seller’s election: (a) credit for the purchase price, including any transportation charges paid by the Buyer; or (b) Seller’s replacement of the product. Nothing herein shall be construed to require Seller to replace damaged or defective products or to make up shortages when such damage, defect or shortage would not otherwise be Seller’s responsibility. Notwithstanding the foregoing, or any agreement to pay freight or other transportation charges, Seller shall have no liability for loss or damage to any product occurring once such product is no longer under Seller’s direct control.
6. LIMIT OF LIABILITY: Notwithstanding anything contained in these Terms and Conditions to the contrary, Seller’s liability to Buyer shall in any case be limited to the purchase price of the products sold to Buyer. Any claim against Seller shall be commenced within one (1) year after that date that Buyer had knowledge or, or should have had knowledge of, the cause of action. Any claim made after such date shall be deemed waived. Seller shall not be liable for, and the Buyer assumes responsibility for all personal injury and property damage resulting from the handling, possession, resale, or use of the product by the Buyer in the Buyer’s manufacturing processes, whether used alone or in combination with other substances. In no event shall Seller be liable for any special, consequential, incidental, indirect, or punitive damages arising from any product shortages, defects, or damages, or nonconformity in Seller’s performance of its obligations under these Terms and Conditions.
7. INDEMNITY: Buyer shall indemnify and hold Seller, its officers, directors, shareholders, employees, contractors, suppliers, affiliates, agents, and representatives harmless from and against any and all liability, losses, causes of action, claims, demands, costs, and expenses (including reasonable attorneys’ fees) arising out of, in connection with, or incident to any product purchase by Buyer or Buyer’s obligations under these Terms and Conditions. For the avoidance of doubt, all reasonable costs, including attorney fees, incurred by Seller in connection with these Terms and Conditions or enforcing the terms thereof shall be payable by Buyer upon demand notwithstanding anything contained in these Terms and Conditions to the contrary.
8. TITLE AND RISK OF LOSS: Title and risk of loss in all products sold hereunder shall pass to the Buyer upon shipment from Seller’s facility. Seller warrants that it will convey good title and deliver the product to the Buyer free from all lawful security interests, liens, or encumbrances whatsoever.
9. FORCE MAJEURE: Seller shall not be required to perform any of its obligations hereunder, nor be liable for loss or damage for failure to do so, nor shall Buyer be released from any of its obligations under these Terms and Conditions because of Seller’s failure to perform, where such failure arises from or through any: war; insurrection; riot; fire; flood or other unusual weather conditions; explosion; act of God; peril of the sea; strike, lockout or other industrial disturbance; sabotage; accident; embargo; breakage of machinery or apparatus; injunction; act of governmental authority; compliance with government order or national defense requirements; inability to obtain fuel, power, raw materials, labor, containers or transportation facilities; epidemic or pandemic; or any other circumstances beyond Seller’s reasonable control. If Seller is so delayed or prevented from performing any of its obligations the period of such delay or such prevention shall be deemed added to the time herein provided for the performance of any such obligation.
10. LAW AND REGULATIONS: Seller’s and the Buyer’s obligations hereunder shall be subject to all applicable governmental laws, rules, regulations, executive orders, priorities, ordinances and restrictions now or hereafter in force, including, but not limited to, (a) the Fair Labor Standards Act of 1938, as amended; (b) Title VII of the Civil Rights Act of 1964, as amended; (c) The Age Discrimination in Employment Action of 1967; and (d) the rules, regulations and executive orders pertaining thereto.
11. GOVERNING LAW; RESOLUTION OF CONTROVERSIES: Any agreement between Seller and Buyer, including these Terms and Conditions, shall be governed by and construed in accordance with the laws of the State of Ohio. Notwithstanding anything contained herein to the contrary, any dispute arising between Seller and Buyer shall first be submitted, within thirty (30) days of the date the dispute arises, to mediation in Cleveland, OH pursuant to procedures of the American Arbitration Association (“AAA”). Any agreement regarding settlement reached at the mediation shall be reduced to writing and signed by the parties, no later than five (5) days after the conclusion of the mediation. If the mediation is unsuccessful, then the dispute shall be submitted, no later than thirty (30) days after the mediation, to arbitration conducted pursuant to procedures of the AAA. Arbitration shall occur no later than ninety (90) days after submitting the matter to be arbitrated. The parties shall share equally the fees of the mediator and, if applicable, the fees of the arbitrator. The award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Without limiting the generality of the foregoing, no party shall be required to resort to mediation or arbitration as a prerequisite to seeking and/or obtaining the remedies of specific performance or injunction, and any action or suit seeking either of such remedies may be filed directly in any court of competent jurisdiction with jurisdiction in Portage County, OH, and the parties hereby waive any objection to such venue.
12. LABELING AND HANDLING: Seller shall package and label the product pursuant to applicable hazardous materials transportation regulations and the OSHA Hazard Communication Standard then in effect, and Buyer shall promptly and carefully inspect the product upon receipt. Buyer will maintain appropriate safe handling and use procedures for the product and will apprise its employees and customers of the hazards, proper use and handling requirements of the product, and shall comply with the OSHA Hazard Communication Standard, as may be amended.
13. BUYER’S BREACH. In the event of any breach of any provision of these Terms and Conditions by Buyer, or if in Seller’s judgment Buyer’s credit shall become impaired at any time, Seller, at its option without prejudice to any other remedy or remedies which Seller may have against Buyer for such breach at law, in equity, or otherwise, may: (a) terminate the sale of product(s), or (b) suspend any further deliveries hereunder until correction of the breach or credit impairment, but in any case Buyer shall remain liable to Seller for all loss and damage sustained by reason of any such breach or credit impairment and for all amounts due and owing to Seller at such time. Seller’s waiver of any breach, or failure to observe or enforce any of these Terms and Conditions, at any time, shall not in any way affect, limit, or waive Seller’s rights thereafter to enforce and compel strict compliance with every term and condition hereof upon subsequent written notice to Buyer.
14. ASSIGNMENT. Buyer shall not assign these Terms and Conditions, or any of its rights or obligations to Seller, to any person or entity without the prior written consent of Seller, which consent may be withheld in Seller’s sole discretion.
15. INTELLECTUAL PROPERTY; CONFIDENTIALITY. Buyer, and its members, managers, shareholders, officers, directors, employees, contractors, agents, or representatives (collectively the “Buyer Parties”) shall not own or acquire any right, title or interest to Seller’s Intellectual Property Rights or Confidential Information, as such terms are hereinafter defined. The Buyer Parties shall not at any time or in any manner, either directly or indirectly, use for the personal benefit of the Buyer Parties, or divulge, disclose, or communicate in any manner, any information that is proprietary to Seller, including the Intellectual Property Rights and Confidential Information. In addition to, and not in limitation of the foregoing, the Buyer Parties shall not reverse engineer, disassemble, or decompile any product, sample, software, or other tangible objects that embody or incorporate Seller’s Intellectual Property Rights and/or Confidential Information, nor shall any of the Buyer Parties release, submit, file, or otherwise divulge any Intellectual Property Rights or Confidential Information to any artificial intelligence platform. The Buyer Parties shall protect all Intellectual Property Rights and Confidential Information and treat all the same as strictly confidential. In the event Seller provides the Buyer Parties with an oral or written waiver of the confidentiality obligations herein, such waiver shall be limited to a single occurrence tied to the specific information disclosed to a specific third party, and the confidentiality obligations herein shall continue to be in effect for all other occurrences. As used herein the term “Intellectual Property Rights” means all patent rights, trademark rights, copyrights, design rights, trade secret rights, database rights, moral rights, and any other intellectual property rights (registered or unregistered) worldwide that are owned, licensed or otherwise acquired by Seller, whether prior to or after the execution of a purchase order, and whether or not related to the manufacture or use of any product. The term “Confidential Information” means any confidential “know how”, trade secrets, contractor or supplier lists, business plans, processes, price information, or accounting data of Seller. All Confidential Information is provided on an “AS IS” basis and Seller does not make any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information disclosed to any of the Buyer Parties. Neither Seller, nor any of its employees, affiliates, agents, or representatives shall be liable to the Buyer Parties relating to or resulting the use of any of its Confidential Information or any errors in or omissions from its Confidential Information. The foregoing provisions of this Section shall survive the fulfilment or termination of any purchase order or any other written agreement between Seller and Buyer.
16. MISCELLANEOUS: This document (the “Terms and Conditions”), along with any documents referenced herein or attached the purchase order/invoice of which these Terms and Conditions are attached to and/or form a part thereof, contain all the terms and conditions with respect to the transaction contemplated by said purchase order/invoice. These Terms and Conditions supersede any of the previous dates and any agreements, written or oral, entered into between the Buyer and Seller concerning the subject matter hereof. Any modification of these Terms and Conditions, or of any purchase order or invoice shall be in writing and signed by both parties. These Terms and Conditions shall inure to the benefit of and shall be binding upon and enforceable against the respective heirs, legal representatives, successors and assigns of Seller and Buyer. If any provision, paragraph, or subparagraph of these Terms and Conditions is adjudged by any court to be void or unenforceable in whole or in part, this adjudication shall not affect the validity of the remainder of the Terms and Conditions, including any other provision, paragraph, or subparagraph. Each provision, paragraph, or subparagraph of these Terms and Conditions is severable from every other provision, paragraph, or subparagraph, and constitutes a separate and distinct covenant. In the event of any conflict between a purchase order, invoice, and these Terms and Conditions, the terms of a written purchase order accepted by Seller shall control. These Terms and Conditions shall be deemed approved by Buyer upon Seller’s acceptance of a written purchase order of which these Terms and Conditions are attached, and in all cases Buyer’s receipt of, or any payment towards, a product subject to a purchase order/invoice of which these Terms and Conditions are attached shall irrevocably constitute Buyer’s acceptance of these Terms and Conditions. For purposes of these Terms and Conditions, “Seller” shall collectively mean and refer to Aurora Plastics, LLC, a Delaware limited liability company d/b/a Aurora Material Solutions, and any affiliates thereof, “Buyer” shall mean and refer to the person and/or entity named as the responsible party, customer, and/or recipient on the purchase order /invoice of which these Terms and Conditions are attached and form a part thereof, and “product” shall mean and refer to the product(s) referenced on and subject to said purchase order/invoice.