NOTICE: THIS SALES TRANSACTION, INCLUDING BUT NOT LIMITED TO, ANY OFFER, QUOTATION, ORDER CONFIRMATION, OR ACCEPTANCE, OR INVOICE FOR THE SALE OF ANY PRODUCTS THEREIN (“PRODUCTS”) ANY CONDITIONS CONTAINED IN THIS DOCUMENT, AND ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY A PURCHASER OF PRODUCTS (“PURCHASER”) ARE OBJECTED TO AND WILL NOT BE BINDING UPON, OHIO CARBON INDUSTRIES INCLUDING ITS SUBSIDIARIES AND AFFILIATES (COLLECTIVELY, “SELLER”) THESE TERMS AND CONDITIONS OF SALE ARE INCORPORATED INTO THIS SALES TRANSACTION AND SHALL APPLY TO THIS SALES TRANSACTION WHETHER OR NOT THEY APPLIED TO A PRIOR PURCHASE BY PURCHASER.
1. ACCEPTANCE. All orders received by Seller are subject to final acceptance or confirmation by Seller and no terms or orders are binding upon Seller until so accepted
2. DELIVERIES. Unless otherwise specified by seller in writing, all deliveries are F.O.B. Seller’s facility (U.C.C. Terms) All deliveries shall be via common carrier or some other reasonable means chosen by seller. All risk of loss to Products shall pass to Purchaser by Seller upon delivery of such products to a common carrier. Delivery is conditional on Purchaser’s compliance with these terms and on timely receipt by Seller of documents necessary for the completion of the order and of any down payment. Partial deliveries of Products are permissible. Seller will not be liable for any delay in the performance of orders, or in the delivery of shipment of products, or for any damages suffered by Purchaser by reason of such delay. Delivery is subject to Purchaser maintaining credit satisfactory to the Seller. Seller may suspend or delay performance or delivery at any time pending receipt by Seller of assurance from Purchaser of the ability of Purchaser to pay, including the payment to Seller of the purchased price of Products, in full or in part, Purchaser of the ability of Purchaser to pay, including the payment to the Seller of the purchased price of Products, in full or in part, or the payment to Seller of any outstanding amounts owed to Seller. Failure of Purchaser to provide such assurance to Seller shall entitle Seller to delay delivery and/or cancel this order without further liability or obligation to Purchaser.
3. PRICES. Unless otherwise specified by Seller in writing, prices and quantities are quoted F.O.B Seller’s facility (U.C.C. terms). Prices are subject to change by Seller without notice to Purchaser. Only these prices set forth in this Sales Transaction will apply to the order. Unless otherwise specified, prices do not include any packing or handling charges, any sales, use, excise, privilege, or similar tax, or any export or import tax or duty levied by a government; and Purchaser shall pay any such applicable charges, taxes, and duties. Upon the request of Seller, Purchaser shall provide Seller with a tax exemption certificate acceptable to the appropriate taxing authorities.
4. TERMS OF PAYMENT. Unless otherwise specified by Seller in writing, the purchase price shall be due in full by purchaser upon tender of delivery of products. Extension of credit, if any, may be changed or withdrawn by the Seller at any time. Invoices not paid within thirty (30) days after due date will be subjected to carrying charges. Carrying charges shall accure and are added to the unpaid balance at the rare of one and one–half (1 ½%) per month of any overdue unpaid balance, or the maximum rate permitted by law, whichever rate is less. Purchaser shall reimburse Seller for the costs of collection, including, without limitation, reasonable attorney’s fees, of any overdue amount owed by Purchaser to Seller, and such collection costs shall also be subject to carrying charges. Purchaser may not retain or set-off any amounts owed to Seller in satisfaction of any claims asserted by Purchaser against Seller.
5. CLAIMS AND RETURNS OF PRODUCTS. Within ten (10) days after Purchaser’s receipt of Products, Purchaser must give written notice to Seller of any claim by purchaser based upon the condition, grade, or quantity of products; such notice must indicate the basis of the claim in detail. Purchaser’s failure to comply with this paragraph shall constitute irrevocable acceptance by Purchaser of Products as delivered and shall bind Purchaser to pay to Seller the full price of such Products. Products shall not be returned to Seller without Seller’s prior written consent; and transportation charges for any authorized returns of Products shall be pre-paid by Purchaser.
6. CANCELLATION/CHANGES. Purchaser may not cancel or change an order once placed with and accepted by Seller except with the prior written consent of Seller and upon terms that will indemnify Seller against any loss. Seller may correct mathematical or clerical errors Seller may make any technical changes to Products, as Seller may deem necessary
7. EXCUSABLE DELAYS. Seller shall not be liable for delays or failure to perform due, directly or indirectly, to causes beyond Seller’s control, including the inability of Seller’s suppliers to deliver goods, services, or raw materials necessary for Seller to perform this sales transaction, acts (including failure to act) of any governmental authority, wars (declared or undeclared), strikes or other labor disputes, fires, and natural calamities (such as floods, earthquakes, storms, and epidemics).
8. SELECTIONS AND APPLICATION. Purchaser is solely responsible for the proper selection and application of Products, even when Purchaser requests Seller to quote a substitute for an item that was originally supplied to Purchaser by one of Seller’s competitors or which is no longer available in the industry. Purchaser agrees that it will use and apply Products only for there intended uses and according to specifications and limitations established by Seller from time to time. Purchaser shall indemnify and hold Seller’s harmless from and against any and all damages, claims, or expenses (including reasonable attorneys’ fees) arising out of or relating to improper selection, application, or abuse of Products, or use or application of Products other than according to specifications and limitations established by Seller from time to time.
9. TOOLING CHARGES. Once the customer pays for the tooling, OCI is responsible for upkeep and maintenance costs for a normal life span of the tooling in question. When tooling is no longer useful due to normal use or wear and tear, the customer will be informed and OCI will await the customer decision on replacement of expired tooling.
10. EXCLUSIONS OF WARRANTIES. PURCHASER ACCEPTS SELLER’S PRODUCTS AND SERVICES “AS IS”. NO EXPRESS WARRANTY AND NO IMPLIED WARRANTIES OF ANY TYPE, WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR OTHERWISE, SHALL APPLY TO PRODUCTS OR SERVICES.
11. LIMITATION AND EXCLUSIONS OF DAMAGES. IN NO EVENT SHALL SELLER’S LIABILITY TO PURCHASER EVER EXCEED THE PURCHASE PRICE OF PRODUCTS. SELLER SHALL NOT BE LIABLE TO PURCHASER FOR INJURIES, LOSSES, OR DAMAGES RESULTING FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER, NOR SHALL SELLER BE LIABLE TO PURCHASER, IN ANY EVENT, FROM CONSEQUENTIAL, INCIDENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR SPECIAL DAMAGES, WHETHER BY REASON OF BREACH OF CONTRACT, TORT, WARRANTY, OR OTHERWISE) INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST OF USE FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF GOODWILL, OR ANY OTHER LOSS WHATSOEVER, WHETHER ARISING FROM THE SALE OF PRODUCTS OR SERVICES, ANY DEFECT IN PRODUCTS, AND ANY USE OF PRODUCTS OR SERVICES, OR FROM PURCHASER’S INABILITY TO USE PRODUCTS, OR OTHERWISE.
12. PROPRIETARY INFORMATION. Seller retains ownership of all intellectual property rights, including, without limitation, patents, trademarks, trade names, trade secrets, and copyrights, and of all drawings, illustrations, dimensions, specifications, copyrights, and performance projections, designs, plans, price lists, customer lists, computations, and descriptions prepared by Seller in connection with or relating to Products (“Proprietary Information”). Purchaser shall not copy or disclose to any other persons or use for any purpose whatsoever any or all of the Proprietary Information without Seller’s prior written consent. It would be impractical or extremely difficult to fix the actual damage suffered by Seller if Purchaser improperly disclosed Proprietary Information to others. The parties hereby acknowledge and agree that, due to the unique nature of Proprietary Information, any breach of this agreement; Seller may seek an injunction prohibiting such breach. Any such relief shall be in addition and not in lieu of any appropriate relief in the way of money damages. Each party shall pay its own attorney’s fees, costs, and expenses related thereto. Seller shall not be required to post bond for injunctive relief sought, and purchaser hereby waives any requirements for the posting of bond.
13. PATENTS AND TRADE SECRETS, AND COPYRIGHT INDEMNITY. Purchaser shall hold Seller harmless against any claim, and that Purchaser’s expense defend any suit or proceeding, brought against Seller based on a allegation that any of the designs, drawings, specifications provided by Purchaser to Seller, or any products resulting there from, or any therefore, or the application or use of Products for the intended purpose, constitute an infringement of any patent or copyright or misappropriation or misuse of any trade secret.
14. SECURITY AGREEMENT. Purchaser hereby grants to Seller a purchase money security interest in Products and to the proceeds thereof. Purchaser shall execute and deliver any financial statements and other documents that Seller may reasonably require for the protection of the security interest hereby granted to Seller by Purchaser and Purchaser hereby authorizes Seller to do all other acts reasonably necessary for the establishment, protection, preservation, and enforcement of such security interests. Purchaser shall maintain adequate insurance against casualty, loss, fire, or theft of Products FOR SO LONG AS THE SECURITY INTEREST IS IN EFFECT.
15. ASSIGNMENT. Purchaser may not assign its rights to or obligations hereunder without the prior written consent of Seller of any purported assignment by Purchaser without the consent of Seller shall be of no effect.
16. LIMITATIONS. Any action by Purchaser under this Agreement or relating to Products must be commenced within one (1) year after such cause of action has accured.
17. CHOICE OF LAW. This Agreement and any dispute or claim relating to it shall in all respects be governed by and construed according to the laws of the State of Ohio, excluding its conflict of law principles.
18. CHOICE OF FORUM, VENUE, AND CONSENT TO JURISDICTION. Except with respect to an action instituted by Seller for equitable relief, including, without limitation, an action for temporary or permanent relief, Purchaser and Seller agree that the General Courts of Justice of the State of Ohio and the United States District Courts situated in Cleveland, Ohio shall constitute the exclusive forum(s) for the adjudication of any and all disputes or controversies arising out of or relating to this order to Products, Purchaser and Seller consent to the jurisdiction over them by such courts with respect to any dispute or controversy, and Purchaser and Seller waive any objection to the assertion to the exercise by such court of such jurisdiction.
19. CONSTRUCTION OF AGREEMENT. The provisions contained in this Sales Transaction are incorporated into these terms an conditions of sale by reference, and in the event any provisions of this Sales Transaction conflict with any provisions of these terms and conditions, the provisions of this Sales Transaction shall control (with the other provisions of these terms and conditions continuing to apply to this Sales Transaction). These terms and conditions of sale may not be amended, modified, or supplemented except by written agreement executed by Purchaser to Seller. The provisions of this Sales Transaction are hereby deemed by the parties too be severe able and the invalidity or unenforceability of one provision shall not affect the validity or enforceability of any other provision. Purchaser and Seller acknowledge that these terms and conditions of sale not affect the validity of enforceability of any other provision. Purchaser and Seller acknowledge that these terms and conditions of sale, together with the Sales Transaction, constitute the entire Agreement between Purchaser and Seller with regard to the sale or transfer of products, and supersede all prior oral or written statements of any kind made by the parties of there representatives.