THIS ORDER IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS AS WELL AS THOSE APPEARING ON THE REVERSE HEREOF
3. Acceptance-Entire Agreement-Modification. Master Molded Products Corporation (Master Molded) shall not be bound by this order until Seller executes and returns to Master Molded the acknowledgment copy of this order. Seller shall have unconditionally accepted this Order, subject to and expressly limited by the terms and conditions contained herein, or incorporated herein by reference, and shall be bound by these terms and conditions when Seller executes and returns the acknowledgment, or delivers or performs any of the items ordered. MASTER MOLDED EXPRESSLY OBJECTS TO AND REJECTS ALL MODIFICATIONS, DIFFERENT OR ADDITIONAL TERMS HERETOFORE OR HEREAFTER PROPOSED BY SELLER including, but not limited to, terms contained in any quotation or offer to sell of Seller. Master Molded's acceptance of or payment for any item shall not constitute acceptance of any counter proposal, modification, additional, or different term submitted by Seller. These terms and conditions constitute the entire agreement between Master Molded and Seller and no order, notice, change, modification, suspension, revision or termination of this order by Seller shall be binding upon Master Molded unless made in writing, and signed by Master Molded's authorized representative. ANY OBJECTION BY SELLER TO THESE TERMS AND CONDITIONS SHALL BE INEFFECTIVE UNLESS MASTER MOLDED IS ADVISED, IN WRITING, WITHIN 10 DAYS OF THE DATE OF THIS ORDER.
4. Delivery, Time is of the Essence.
A. If delivery or performance is not completed when promised Master Molded may without liability, in addition to all other rights, cancel all or part of this order, and as to items not yet shipped or performed, purchase substitute items elsewhere, and charge Seller with any loss incurred. Any provisions for delivery or performance by installments shall not be construed as making Seller's obligations severable. Delivery shall not be deemed complete until goods are actually received and accepted by Master Molded notwithstanding any agreement to pay freight or other transportation charges. Packing lists shall be enclosed with each shipment shipped pursuant to this order. Invoices will not be processed for payment until all items invoiced are received and accepted. Risk of loss in transit is Seller's. All goods are to be shipped freight prepaid, F.O.B. destination unless otherwise stated. Seller will, at its expense, ship by express, air or the most expeditious way if the delivery schedule is endangered.
B. Efficient use by Master Molded of any item ordered requires that any related data be delivered no later than the time specified for delivery of the item.lf the data is not delivered, Master Molded may, so long as data remains undelivered, withhold payment to Seller for any item. "Data" includes, without limitation, drawings (including but not limited to a full set of final "as built" drawings, tracings, and sepias), instructions, reproductions, specifications, photographs, reproducible copy; parts lists, plans, reports, computations, certifications, and material safety data sheets. Seller shall give Master Molded prompt notice of shipment of items to be delivered to a destination other than Master Molded.
A. Master Molded may terminate all or part of any order at any time by giving notice stating the extent and effective date of termination. Upon receipt thereof, Seller will, unless otherwise directed by Master Molded: (I) stop work under and relating to the order, and (II) protect all property in which Master Molded has or may acquire an interest. Seller shall submit to Master Molded its written claim for compensation, if any, as soon as possible, but in any event not more than twenty (20) days after termination. Seller grants Master Molded the right to audit and inspect its books, records, and all other documents relating to its termination claim. Cancellation costs will be paid only as specified on the face hereof. If no terms are specified and if the parties cannot agree within a reasonable time upon compensation for such termination Master Molded's liability to Seller will be limited to the following amounts only, without duplication: (I) the contract price, not previously paid, for items accepted by Master Molded or completed in accordance with this order, prior to termination; and (II) the actual costs incurred by Seller and properly allocable or apportionable under generally accepted accounting principles to the terminated portion of this order. Seller may, with Master Molded's writen consent, retain at an agreed price or sell at an approved price any completed item, work in progress or other physical inventory, the cost of which is allocable or apportionable to the order canceled, and will credit and pay the amounts so agreed or received as Master Molded directs, with appropriate adjustments for delivery cost savings, Seller will, if directed by Master Molded transfer title to or make delivery of any such items, work in progress or other physical inventory not so retained or sold.
B. Master Molded further reserves the rigth to terminate all or part of any order at any time for defaule, (I) if Seller fails to perform in accordance with Master Molded's order or to make reasonable progress in Master Molded's opinion; or (II) if Seller becomes insolvent or suspends any operations or if any petition is filed or preceeding commenced by or agains Seller under any state or federal law relating to bankruptcy, arrangement, reorganization, receivership or assignment for the benefit of creditors; or (III) if Master Molded deems itself unsecure as provided herein. Any such termination will be without liability to Master Molded except for completed Items delivered and accepted by Master Molded, for which payment shall be set off against any damages due Master Molded. Master Molded may require Seller to transfer title and deliver any or all property produced or procured by Seller for performance of the work terminated and Seller shall be credited with the reasonable value thereof not to exceed Seller's cost. Seller will be liable for damages caused by or resulting from its default including but not limited to excess cost of cover. If, after a default termination, it is determined that Seller was not in default, termination shall be considered to have been made pursuant to subparagraph A of this clause.
6.Stop Work Orders. Master Molded may at any time, by giving notice, stop all or part of the, work under any order for a period of up to one hundred twenty (120) days. At any time during such period, Master Molded may, with respect to all or any part of the work covered by the stop work order, either discontinue the stop work order or terminate the work in accordance with these terms and conditions. To the extent the stop work order is discontinued, Seller shall resume work. If a stop work order expires it shall be treated as though the order were terminated in accordance with these terms and conditions with the date of termination deemed to be the 120th day of the stop work order, and the provisions of Section 5 shall apply to such termination. If a stop work order has a material effect on cost or delivery, adjustment shall be made in the price (excluding profit) and/or delivery schedule, provided, however, that no adjustments shall be made, (I) if the work would have been otherwise interrupted or delayed; or (II) for which an adjustment is otherwise available or excluded under these terms and conditions. No claim shall be allowed unless submitted to Master Molded, in writing, within twenty (20) days after the work is terminated or the stop work order expires or is discontinued, whichever first occurs.
7. Changes. Master Molded reserves the right at any time to make changes in any of the following: (I) Specifications, drawings and data incorporated in any contract where the items are to be specially manufactured for Master Molded; (II) Methods of shipment or packing; (III) Place or time of inspection, delivery or acceptance. If any such change causes a change in the cost of or the time required for performance, equitable adjustments shall be made. Any claim by Seller for adjustment shall be waived unless asserted in writing within twenty (20) days from notice of the change. Price increases or extensions of time of delivery shall not be binding on Master Molded unless agreed to in writing by Master Molded's authorized representative. Where the cost of property rendered obsolete or excess as the result of a change is included in Seller's claim for adjustment, Master Molded will have the right to take title thereto and prescribe the manner of disposition thereof. Nothing in this clause shall excuse Seller from proceeding with any order as changed.
8. Defects and Inspection. Delivery of or payment for all or any part of the goods; shall not be deemed a waiver of Master Molded's rights either: (I) to cancel or return all or part of the order because of failure to conform to the order, instructions, specifications, drawings or data, or by reason of defects, latent or patent, or other breach of warranty by Seller; or (II) to make any claim for damages, including manufacturing costs and loss of profit or other special, incidental or consequential damages. Such rights shall be in addition to any others at law or equity. Notwithstanding any payment, delivery, passage of title, or prior inspection or test, Master Molded shall have the right to final on-site inspection for a reasonable time after goods are put into service, before acceptance of any goods. Furthermore,at all reasonable times during the period of Seller's performance, including manufacture, Master Molded and its customers may inspect and test the items to be furnished at any place where work is being performed, including those of Seller's suppliers, and Seller shall provide, without additional charge, reasonable facilities and assistance for convenient inspection and testing. Seller shall provide and maintain a test and inspection system acceptable to Master Molded. Records of all inspection work by Seller shall be kept complete and available to Master Molded and its customers during the performance of the order and for at least five (5) years after final payment. In the event of nonconforming delivery or other breach of warranty by Seller, Master Molded may, in addition to any other rights it may have: (I) recover from Seller any cost of removing items from property, equipment or products in which items are incorporated and any additional cost of re-inspection and retesting: and either; (II) elect any one or more of the following (a) return such items at Seller's risk and expense, (b) require Seller, at its expense, to promptly replace or correct such items, (c) pending redelivery, require repayment of any amount paid for returned items or effect a set off of any amount owed Seller, and (d) upon Seller's refusal or failure to promptly correct or replace, repair or effect cover by purchase or manufacture at Seller's expense; or (III) accept or retain nonconforming items and equitably reduce their price.
9. Warranty. Seller expressly warrants to Master Molded and its successors, assigns, customers, and to any person who may reasonably be expected to use, consume or be affected by any item, that (I) Seller will deliver good title free of all liens or encumbrances; (II) all items will be in exact accordance with Master Molded's order, description or specifications, free from defects in design, material and/or workmanship, and will be safe, merchantable, and fit for each and every purpose intended; and (III) if an order is based on a specification or data sheet of Seller's all items will be in strict compliance with such specifications or data. Thi s warranty shall survive delivery, and shall not be waived by acceptance of or payment for items. Any deviations from the order or specifications furnished thereunder, or any other exceptions or alterations must be approved in writing by Master Molded. Seller will indemnify and hold Master Molded harmless from all claims, liabilities, loss, damage and expense incurred by Master Molded's use of or the resale or other transfer of any items.
10.Variation in Quantity. No variation in the quantity of any item will be accepted except to the extent specified in Master Molded's order. Items shipped in excess of the quantity ordered or variation allowed may be returned at Seller's expense.
11. Indemnification and Insurance. Seller will indemnify and hold harmless Master Molded, its employees, agents, customers and invitees from and against all liability, demand, costs, claims, and expense,including attorneys' and other professionals' fees by reason of or on account of property damage, death and personal injury of any nature or kind arising out of, as a result of or in connection with the performance of Master Molded's order, which is occasioned in whole or in part, by the actions or omissions of Seller, it's employees, agents, affiliates or suppliers. Seller will maintain employer's liability insurance, worker's compensation insurance in statutory amounts and general liability insurance, including but not limited to public, property damage, product, completed operations, and contractual liability coverages, in amounts and with companies approved by Master Molded. Seller will furnish proof of coverage if requested by Master Molded.
12. Price. If price is not stated, items shall be billed at the lowest of the price last quoted, the market price, or the last price billed Master Molded. Orders must not be filled at a higher price than last quoted or billed without Master Molded's written authorization.
13. Cash Discount. If Master Molded is entitled to a cash discount the period of, computation thereof will commence on the date of acceptance or receipt of a correctly completed invoice, whichever is later. If an adjustment in payment is necessary due to damage, the cash discount period shall commence on the date on which as agreed adjustment of price is reached. If a cash discount is part of the contract but not reflected on the invoice Master Molded shall be entitled to a cash discount commencing on the date Master Molded determines that a cash discount applies.
14. Extra Charges. Master Molded will remit for quantities, items, taxes and freight only as called for on the face of its order. No additional charges of any kind, including charges for molds, dies, packing and overages will be allowed unless specifically approved in writing by Master Molded and billed separately.
15. Payment Terms. Payment will be made as specified on the face hereof. If no terms are specified, payment will be due net 30 days following delivery, including delivery of all "Data", receipt of your invoice, and acceptance. Payment will be remitted by mail. Seller agrees not to deliver goods on a sight draft basis.
16. Prepaid Freight. Please include copies of carrier's freight bill with your invoice for prepaid freight.
17. Set Off. Payment will be subject to deduction of any claim of Master Molded arising from this or any other transaction with Seller or any Affiliate of Seller.
18. Right to Adequate Assurance of Performance. Should Seller fail to ship any item on time, or should Seller, or its suppliers, fall behind in any agreed timetable or should Master Molded, in it's sole discretion, otherwise feel insecure regarding Seller's ability to fully perform any duties in a timely and proper fashion, then Master Molded, notwithstanding any other provision of these terms and conditions, or any course of performance course of dealing, or usage of trade may decline to make payments and may otherwise suspend its performance until Master Molded receives adequate assurance of performance satisfactory to it. Failure to provide adequate assurance within ten (10) days of notice of insecurity shall be repudiation by Seller of this Agreement. Nothing in this paragraph shall limit any of Master Molded's other rights.
19. Attorney's Fees. In any suit or action brought to enforce any terms, condition, or covenant herein, or to recover damages arising from any breach of this contract, the losing party shall pay to the prevailing party's reasonable attorneys' and other professionals' fees and all other costs and expenses which may be incurred by the prevailing party in any such suit or action and in any reviews thereof and appeals therefrom.
20.Intended Use. Unless otherwise stated, the items ordered are to have an intended usage in the manufacture, construction, modification, maintenance, repair and/or servicing of Master Moldeds' products and facilities.
21. Patents. Seller shall indemnify and hold harmless Master Molded and its affiliates, their successors and assigns, and their customers, from loss and/or liability of any nature or kind, including attorney's or other professionals' fees arising out of the infringement or alleged infringement of any patent, trade secret or intellectual property right on account of the manufacture, sale or use of any items furnished, except where compliance by Seller with specifications prescribed by and originating with Master Molded constitutes the sale basis of the infringement or alleged infringement. At Seller's request Master Molded shall give Seller control of the defense of any infringement suit, insofar as Master Molded is able to, and information and assistance for the same, all at Seller's expense. Master Molded and any other party against whom suit is brought, may be represented by their own counsel in any such suit.
22. Special Equipment, Tool s, and Facilities. Unless otherwise agreed in writing, all special dies, molds, patterns, jigs, fixtures and any other property furnished, or fully or substantially paid for, by or on behalf of Master Molded shall be: (I) the property of Master Molded; (II) subject to removal upon Master Molded's instruction; (III) used only in filling orders from Master Molded; (IV) held at Seller's risk; (V) kept insured by Seller at Seller's expense while in Seller's custody or control, in an amount equal to the replacement cost thereof, with loss payable to Master Molded (proof of such insurance shall be furnished on demand); (VI) plainly marked or otherwise adequately identified as "Property of Master Molded Products Corporation"; (VII) stored safely and separately from Seller's property; and (VIII) modified or altered only with Master Molded's prior written approval. If Master Molded directs removal or return of such items, Seller, at its expense, shall prepare them for shipment and shall deliver them as Master Molded directs in the same condition as originally received by Seller, reasonable wear and tear excepted. Seller will promptly notify Master Molded of the location of items located any place other than Seller's principal plant and shall not move any such property from Seller's principal plant without Master Molded's prior written consent. Seller will maintain sound accountability and property control records. Seller, at its expense, will maintain all items in good condition and repair or replace them to the extent necessary for performance of Master Molded's order. Master Molded shall have the right, at any time to enter Seller's premises to inspect such property and to determine if Seller's obligations hereunder are being fulfilled. Master Molded does not warrant the accuracy or fitness of items which it furnishes and Seller shall be solely responsible for any loss or damage caused by or resulting from the use of such items. Upon completion or termination of Master Molded's order, all items will be retained by Seller at Seller's expense until disposition directions are received from Master Molded. Seller will pay personal property and similar taxes on any items in its possession.
23. Special Tool ing. The term "special tooling" as used in this clause shall be deemed to include all jigs, dies, fixtures, molds, patterns, special cutting tools, special gauges, special test equipment, other special equipment and manufacturing aids, and drawings and any replacements of the foregoing, acquired or manufactured or used in the performance of this order, which are of such a specialized nature that, without substantial modification or alteration, their use is limited to the production of the supplies or parts thereof or performance of the services of the type required by this order. The term does not include (a) items of tooling or equipment heretofore acquired by Seller or replacement thereof, whether or not altered or adopted for use in the performance of this order, (b) consumable small tools, (c) general or special machine tools or similar capital items, or (d) tooling, title to which is in Master Molded. Seller agrees that special tooling shall be retained and not used or reworked except for performance of work hereunder or as authorized in writing by Master Molded. While in Seller's possession or control, Seller warrants that it will keep the special tooling in good condition, fully covered by insurance, and will replace it when lost, destroyed, or necessary for performance of work hereunder. Upon cessation or termination of the work under this order for which the special tooling is required, Seller shall furnish Master Molded a list of the products, parts, or services for the manufacture or performance of which such special tooling was used or designed and a list indicating where each item of the special tooling is located, and shall transfer title to and possession of the special tooling to Master Molded for an amount equal to the unamortized cost thereof, or dispose thereof as Master Molded may direct in writing. In addition, Master Molded shall have the right to take possession of, including the right of entry for such purpose, any special tooling, title to which Master
Molded acquires hereunder, without any additional liability whatsoever to Seller.
24. Drawings and Data. All drawings, data, designs, instructions, models, specifications, or other information, written, oral or otherwise, furnished by or on behalf of Master Molded or prepared specifically in connection with production of items for or on behalf of Master Molded (hereinafter designated "information") shall be and remain the property of Master Molded. Seller shall not use or disclose such information except in the performance of orders for Master Molded, and only to the extent necessary to perform such orders, and upon Master Molded's request, information and all copies thereof shall be returned. Where information is furnished by Seller to others, Seller shall insert the substance of this provision in its orders or agreements and shall provide copies thereof to Master Molded. All tools, drawings, tracings, hobs, models or similar items are the property of Master Molded and shall be delivered to Master Molded with the mold. All tool drawings, tracings, sepia's and other documentation must be updated to reflect the "as built" mold and copies of such documentation must accompany any invoice to Master Molded.
25. Security Interest.
A. Master Molded hereby retains and Seller hereby grants to Master Molded a continuing first security interest in: (I) all special dies, molds, patterns, jigs, fixtures and any other property furnished, or fully or substantially paid for, by or on behalf of Master Molded: and (II) all drawings, data, designs, instructions, models, specifications, or other information, written, oral or otherwise, furnished by or on behalf of Master Molded or prepared specifically in connection with production of items for or on behalf of Master Molded.(Hereafter referred to as the "collateral")
B. Seller agrees to promptly execute any financing statement or similar document Master Molded deems necessary to perfect or document its security interest and, to expedite the filing of any such document, Seller hereby appoints and authorizes Master Molded or Master Molded's designate, as Seller's attorney in fact for the purpose of taking any actions including, but not limited to, executing financing statements on Seller's behalf or making any filings or recordings, in Seller's name or otherwise, necessary to perfect or otherwise protect Master Molded's security interest in the collateral.
C. It is agreed that Master Molded may file or record a carbon, photographic or other reproduction of this Agreement or of any financing statement executed in connection herewith with the same effect as if the original had been so filed or recorded.
26. Compliance with Laws. Seller represents and warrants that it, its subsidiaries, affiliates and suppliers have complied and will continue to comply with the provisions of all federal, state and local laws, orders, rules, and regulations from which liability may accrue to Master Molded, its employees, agents and customers from any violation thereof. Seller will indemnify and hold Master Molded, its employees, agents and customers harmless from and against and all liability, demands, claims, costs and expense, including attorneys' and other professionals' fees by reason of or on account of any breach of the representations or warranties contain herein.
27. Governing Law. Seller agrees that in the event of any dispute or disagreement between Seller and Master Molded that law of Illinois shall govern the rights and duties of all parties and the interpretation of this contract.
28. Choice of Forum. Seller agrees that in the event of any litigation between Seller and Master Molded all lawsuits will be brought only in courts located in Illinois.
29. Services. Whenever Master Molded's order implicitly or explicitly calls for performance of services, alone or in conjunction with the sale of goods, "goods" as used herein shall also mean "services" and these terms and conditions shall apply to services and/or goods. Furthermore, "item"as used herein shall be read to refer to goods and/or services as the case may be.
30. Resale. Where shipment is to a third party, or Seller otherwise has reason to know that Master Molded may be purchasing any item for resale, delivery to Master Molded is to be construed to mean delivery to Master Molded's customer.
31. Assignment. Any assignment by Seller of this order, in whole or in part, or of any other interest, without Master Molded's written consent shall be void. In the event of any assignment, Seller will file, in addition to a written notice of assignment, a true copy of the instrument of assignment with Master Molded
32. Rights and Remedies of Master Molded. The rights and remedies of Master Molded set forth herein shall be in addition to any other rights and remedies provided in law or equity.
33. Non-waiver and Invalidity. Waiver by Master Molded of any breach of these terms and conditions shall n0t be construed as a waiver of any other breach of the same term or condition or any other term or condition. Should any of these terms and conditions be invalid, or become invalid, the validity of any other provisions shall be continued and shall constitute the agreement between Seller and Master Molded.
34. Notice. Any notice required or allowed to be given hereunder shall be in writing and shall be delivered personally or by United States first class mail or private overnight courier at the address of the appropriate party or by telephonic facsimile communication to the facsimile machine of Master Molded as stated on the face hereof. Notice given personally shall be effective upon delivery, notice sent by mail shall be deemed to be effectively given on the third day after mailing, notice by overnight courier shall be deemed effective on the first day after delivery to the courier, and notice by facsimile machine shall be deemed effective upon receipt, provided, however, notice by facsimile machine shall not be effective unless the party receiving such notice also receives a copy of the notice by another method authorized hereunder, delivered as required herein.
35. Service or Installation of Work. In the event this order requires the performance of work or installation of goods by Seller upon any property or project of Master Molded, the following conditions shall also be applicable:
A. Seller shall take precautions to protect all property and persons from damage or injury arising out of its work and shall comply with all fire, safety, environmental and other applicable regulations prescribed by any governmental agency, insurance requirements, and by Master Molded and/or owner of the project upon which work is being performed, and shall be responsible for the observance thereof by all subcontractors, employees, agents and representatives of Seller and its subcontractors. Seller shall also obtain at its own expense and provide Master Molded with proof of insurance coverage satisfactory to Master Molded for Workman's Compensation and property damage, public liability, personal injury, employer's liability and other applicable insurance. No chemicals to be used in or outside of facility without approval.
B. Seller shall keep the premises and work free and clear of all mechanics' and material men's liens or claims. Seller shall promptly pay for all labor and material and if Seller fails to do so Master Molded, without waiving any rights or remedies against Seller for or by reason of such failure may, but without any obligation to do so, pay the same and deduct the amount of such payments from sums due Seller hereunder; and Master Molded may withhold any payment to Seller until receiving such affidavits, waivers, and releases with respect to claims for labor and materials as Master Molded may require.
C. The work shall remain Seller's risk prior to written acceptance by Master Molded and/or the owner of the project and Seller shall replace at its own expense all work damaged or destroyed by any cause whatsoever.
D. Seller shall observe and comply with, to the extent required by Master Molded, the wages, hours and working conditions established by Master Molded on the project or required by Master Molded by an applicable labor agreement.
E. Seller shall act as an independent contractor and not as the agent or representative of Master Molded.
F. Seller shall perform its work in accordance with the schedules and work programs established by Master Molded and shall fully cooperate with Master Molded and others engaged in work on the project so that the work on the entire project may be performed with the utmost speed,
consistent with good practices. In case of conflict, Master Molded may direct the necessary coordination.
G. Seller shall carry on its work so that the premises shall at all times be clean, orderly and free from debris and upon completion shall remove all equipment and unused materials from the project; clean up all refuse and debris and leave the site of the work clean, orderly and in good condition.
H. Seller shall require Seller's employees, agents, contractors or subcontractors to abide by Master Molded's Work and Safety rules when work or services are performed at Master Molded's premises. Master Molded has the right to exclude personnel from Master Molded's premises who do not abide by such rules, and at Master Molded's election, to declare a default under the order.
I. Seller is solely responsible for its employees, agents, contractors or subcontractors and their action while on Master Molded's premises and the Seller indemnifies and will protect Master Molded from all losses, claims, expenses, damages arising from or out of the presence or activity of Seller's employees while at Master Molded's premises. This indemnification is in addition to Seller's obligations under paragraph 11.