GENERAL TERMS AND CONDITIONS OF SALE
1. Applicability. These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the parts and products (“Goods”) by Mantaline Corporation (“Mantaline”) to the buyer named on the quotation to which these Terms are attached or referenced (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. The accompanying quotation (the “Quotation” and these Terms (collectively, this “Agreement”)) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order (“Order”) or such terms. Fulfillment of Buyer’s Order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. The Quotation expires 45 days from the date noted on the Quotation.
2. Samples. If requested by Buyer, Mantaline shall create sample Goods (“Samples”). Upon completion, the Samples will be submitted to Buyer for approval. Goods made in accordance with Samples approved by Buyer are to be considered as made in compliance with specifications acceptable to Buyer. All Goods will be made to finished sizes, subject to the commercial variation incident to Mantaline’s process of manufacture. Changes in the Goods required to suit Mantaline’s process of manufacture shall be considered part of the design approved by Buyer unless Buyer instructs Mantaline otherwise. Buyer agrees to pay to Mantaline the invoiced amount for all changes made on the original specifications after dies or molds are placed in production.
3. Quantities. Buyer agrees to accept a quantity of Goods within 10% plus or minus of the quantity ordered on all parts made by Mantaline for Buyer. If Buyer does not issue an Order pursuant to the Quotation within (3) three months after Buyer’s approval of a Sample that Mantaline makes at Buyer’s request, Buyer shall reimburse Mantaline for its development efforts per and upon invoice. If Buyer places an Order and then cancels it, Buyer shall pay Mantaline upon invoice for the sales value of in process and completed Goods. After Mantaline begins production of Buyer’s order, Mantaline cannot accept requests for delays in production or delivery of Goods.
4. Special Tooling. All Special Tooling is the property of Mantaline. The term “Special Tooling” shall include such items as molds, dies, jigs, fixtures, mandrels, etc. Mantaline warrants that Special Tooling shall be used for the Buyer’s work only and it shall be the responsibility of Mantaline to maintain the Special Tooling in good working order for its normal useful life. Buyer shall to pay Mantaline’s invoiced amount for any alterations, duplications, or replacement of Special Tooling.
5. Delivery. Delivery of the Goods, unless otherwise specified, shall commence as soon as Mantaline’s schedules permit and shall be made in accordance with Mantaline’s rate of production until orders are completed. Unless otherwise stated on the Quotation, Mantaline shall deliver the Goods to the applicable Mantaline location (the “Delivery Point”) using Mantaline’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within fourteen (14) days of Mantaline’s written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s Order. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Mantaline’s notice that the Goods have been delivered at the Delivery Point, or if Mantaline is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (a) risk of loss to the Goods shall pass to Buyer; (b) the Goods shall be deemed to have been delivered; and (c) Mantaline, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
6. Shipping Terms. Mantaline shall make delivery in accordance with the terms on the face of the Quotation.
7. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Mantaline a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Ohio Uniform Commercial Code.
8. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
9. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within thirty (30) days of receipt (“Inspection Period”) of such Goods. Buyer will be deemed to have accepted the Goods unless it notifies Mantaline in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Mantaline. “Nonconforming Goods” means only the following: (i) Goods shipped are different than identified in Buyer’s Order; or (ii) the Goods’ labels or packaging incorrectly identifies its contents. If Buyer timely notifies Mantaline of any Nonconforming Goods, Mantaline shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to the Delivery Point. If Mantaline exercises its option to replace Nonconforming Goods, Mantaline shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section 9 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section 9 all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Mantaline.
10. Price. Buyer shall purchase the Goods from Mantaline at the prices (the “Prices”) set forth in the Quotation; provided, however, the Prices are subject to change based on increased cost or loss resulting from Buyer’s reduction of quoted quantities or based on Mantaline’s published price list in force as of the date that Mantaline accepts Buyer’s Order. If the Prices should be increased by Mantaline before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Mantaline on the basis of such increased prices. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Mantaline’s income, revenues, gross receipts, personnel or real or personal property or other assets.
11. Payment Terms. Buyer shall pay all invoiced amounts due to Mantaline within thirty (30) days from the date of Mantaline’s invoice and in accordance with the credit terms contained in the Quotation. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Mantaline for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Mantaline does not waive by the exercise of any rights hereunder), Mantaline shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Mantaline, whether relating to Mantaline’s breach, bankruptcy or otherwise. These terms or those subsequently allowed may be changed by Mantaline by written notice to Buyer at any time Mantaline feels insecure for credit reasons or because Buyer fails to make payment as agreed. In either of those events, Buyer agrees that Mantaline may recall Goods in transit, repossess identifiable Goods, or require payment in full before proceeding to manufacture, ship or deliver Goods.
12. Limited Warranty. Mantaline warrants to Buyer that, upon delivery, the Goods will be free from material defects and will materially conform to Mantaline’s published specifications in effect as of the date of shipment. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 12, MANTALINE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in this Section. Mantaline shall not be liable for a breach of the warranty set forth in this Section 12, unless: (a) Buyer gives written notice of the defect, reasonably described, to Mantaline within thirty (30) days of Buyer’s receipt of the Goods; (b) Buyer obtains from Mantaline an authorization return parts number; (c) Mantaline is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Mantaline) returns such Goods to Mantaline’s place of business for the examination to take place there; and (d) Mantaline reasonably verifies Buyer’s claim that the Goods are defective. Mantaline shall not be liable for a breach of the warranty set forth in this Section 12 if: (e) Buyer makes any further use of such Goods after giving such notice; (f) the defect arises because Buyer failed to follow Mantaline’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (g) Buyer alters or repairs such Goods without the prior written consent of Mantaline. Subject to the foregoing, with respect to any Goods that are in breach of the warranty set forth in this Section 12, Mantaline shall, in its sole discretion, either: (h) repair or replace such Goods (or the defective part) or (i) credit or refund the price of such Goods at the pro rata contract rate provided that, if Mantaline so requests, Buyer shall, at Mantaline’s expense, return such Goods to Mantaline. THE REMEDIES SET FORTH IN THIS SECTION 12 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND MANTALINE’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 12.
13. Indemnification. Buyer shall indemnify, hold harmless, and, at Mantaline’s option, defend Mantaline from and against any and all losses, damages, liabilities, and costs (including reasonable attorney fees) incurred by Mantaline as a result of any claim, suit, action or proceeding based on Buyer’s or any related person or entity’s negligence or willful misconduct, breach of this Agreement, or modifications to the Goods not made by Mantaline.
14. Limitation of Liability. IN NO EVENT SHALL MANTALINE BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT MANTALINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL MANTALINE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL PRICE OF THE QUOTED PARTS HEREUNDER.
15. Compliance with Laws. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Mantaline may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
16. Termination. In addition to any remedies that may be provided under these Terms, Mantaline may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
17. Confidential Information. All non-public, confidential or proprietary information of Mantaline, including but not limited to specifications, samples, patterns, designs, molds, dies, jigs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Mantaline to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Mantaline in writing. Upon Mantaline’s request, Buyer shall promptly return all documents and other materials received from Mantaline. Mantaline shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
18. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Mantaline hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other events beyond the control of the Impacted Party. The Impacted Party shall give notice within seven (7) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of seven (7) days following written notice given by it under this Section, the other party may thereafter terminate this Agreement upon seven (7) days’ written notice.
19. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Mantaline. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
22. Waiver. No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach of any other covenant, duty, agreement or condition.
23. Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio.
24. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
25. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to: (a) Mantaline at 4754 E. High St., Mantua, OH 44255; (b) Buyer at the addresses set forth on the face of the Quotation; or (c) such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
26. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
27. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.