METAL
FLOW CORPORATION TERMS AND CONDITIONS OF SALE
These
Metal Flow Corporation Terms and Conditions of Sale (“Terms”) are incorporated
by reference into every quotation, acknowledgement and invoice issued by Metal
Flow Corporation (“Metal Flow”) for shipment of products and will be the only
terms and conditions that will apply to the sale of products by Metal Flow:
1.
OFFER AND ACCEPTANCE. The quotation issued by Metal Flow (“Quotation”), whether or not in response
to a request for quotation process, and as may be amended from time to time, is
an offer to enter into a contract with the Buyer (as identified on the
Quotation) to sell the quantity of products described on the Quotation (the “Products”) for the life of the OEM
vehicle program (the “Program”) for
which the Products are to be used, not including any extensions or renewals of
such Program and/or model refreshes, as reflected in the Program’s life (“Program Life”) set forth on the
Quotation. The drawings, specifications,
preliminary statements of work and assignment of tasks and responsibilities, as
they are agreed to and may be amended by agreement of the Buyer and Metal Flow
from time to time, are incorporated herein by reference, all of which, together
with these Terms and the Quotation, constitute the “Agreement”. Neither the Quotation,
any acknowledgement document or other document issued by Metal Flow nor Metal
Flow’s manufacture or delivery of Products will constitute an acceptance of any
terms and conditions attached to or incorporated into any request for
quotation, purchase order or other document issued by Buyer, and any such
general terms and conditions issued by Buyer are rejected and not incorporated
into the Agreement. Any of the following
acts by Buyer will constitute its acceptance of the Quotation, these Terms and
all terms and conditions contained herein in their entirety: (i) acknowledging
the Quotation; (ii) issuing a purchase order for the Products on the same or
substantially the same terms as reflected on the face of the Quotation; (iii)
accepting delivery of the Products; or (iii) by other conduct which fairly
recognizes the existence of a contract for the purchase and sale of the
Products. Any additional or different
terms proposed by Buyer, whether in its purchase orders, request for quotation materials,
material releases, delivery schedules, or otherwise, are unacceptable to and
expressly rejected by Metal Flow and are not part of the Agreement and will
have no effect with respect to any purchases of Products by Buyer. Metal Flow will not be bound to any
provisions in the contracts between Buyer and its customer(s). Acceptance by Buyer of this offer and Metal
Flow’s performance under any purchase order issued by Buyer is expressly
limited to and conditioned upon Buyer’s acceptance of the terms of the
Quotation and these Terms exclusively.
2.
PRICING. The price for the Products are listed on the
face of the Quotation and are not subject to decrease for any reason including
on account of pricing to any other Metal Flow customer, benchmarking activities
of Buyer, the receipt by Buyer of a quotation for the Products at a lower
price, or on account of any yearly pricing decreases unless specifically set
forth on the face of the Quotation. The
prices are subject to increase in accordance with provisions contained in the
Quotation and, unless otherwise stated in the Quotation, will include a
dollar-for-dollar pass through to Buyer of increases in raw material and
freight prices from the baseline contained in or used in the Quotation, an
increase in the price to account for currency exchange rate increases greater
than 5% between the currency of payment and the currency of the country in
which the Products are manufactured, and an increase in the price reflecting
the higher piece price cost for any increase or decrease in annual volumes
greater than twenty (20%) from estimates provided by Buyer during the quoting
process. In addition to the price of the
Products as stated in the Quotation, any and all taxes (not including any
income or excess profit taxes) that may be imposed by any taxing authority,
arising from the sale, delivery, or use of the goods and for which Metal Flow
may be held responsible for collection or payment either on its own behalf or
on behalf of the Buyer, will be paid by the Buyer to Metal Flow upon Metal Flow’s
demand. The price paid to Metal Flow will
not be reduced on account of any price reduction or compromise on receivables
that Buyer may agree to with Buyer’s customer for the components, systems or
assemblies which contain the Products. Metal
Flow will provide sufficient documentation (without disclosing its confidential
and proprietary information) to support any of the price increases Metal Flow
is entitled to pursuant to this paragraph.
Buyer’s failure to provide the price increases required hereunder will
be deemed a material breach of the Agreement.
3.
CHANGES. Unless specifically agreed to in writing by Metal
Flow, Metal Flow will have no obligation to implement any change requested by
Buyer to the Agreement, including any obligation to supply production Products
beyond the Program Life specified in the Quotation, or to the Products,
including the design, specifications, materials, packaging, testing
requirements, shipping date, or time or place of delivery. To the extent that any such requested change
is agreed upon by Metal Flow, the parties will negotiate in good faith and
agree upon an appropriate adjustment to the time for performance, an equitable
price adjustment, and the amount of reimbursement
by Buyer for the costs of any finished Products or raw materials or supplies
which become obsolete or any other costs and/or appropriate adjustment resulting from the requested change before Metal Flow is under any obligation to commence work on any such agreed
upon change. In addition, all costs and
expenses associated with the implementation of any such requested change will
be paid by Buyer in advance, or, if agreed to in writing by Metal Flow, within
thirty (30) days of the date of the invoice.
If Metal Flow requests a change to the
Products, Buyer will not unreasonably deny such request and, in any event, will
provide its response to such request in writing within a reasonable time after
receipt of the request and, in any event, no later than thirty (30) days after
receipt of the request. To the extent
that Metal Flow’s requested change to the Products offers cost savings and
Buyer denies Metal Flow’s requested change for any reason other than a safety
concern as evidenced by Buyer to Metal Flow’s satisfaction or fails to timely
respond to Metal Flow’s request, then Metal Flow will not be required to
provide Buyer with any productivity discounts or other price decreases set
forth in Metal Flow’s Quotation. To the
extent that Metal Flow’s requested change to the Products offer improved
quality and/or safety and Buyer denies Metal Flow’s requested change or fails
to timely respond to Metal Flow’s request, then all Products manufactured by Metal
Flow from the date of Metal Flow’s request on will be sold “AS IS” without the
warranty specified in Section 9, and all claims, damages, losses, costs,
expenses or other liabilities arising from or related to the such Products,
whether incurred by Buyer or a third party, will be entirely the responsibility
of Buyer.
4.
DELIVERY,
TITLE, RISK OF LOSS AND RIGHT OF REPOSSESSION. Delivery dates are estimated and are not
guaranteed. Metal Flow will use
reasonable efforts to meet Buyer’s requested delivery dates, provided Buyer has
complied with the applicable lead time requirements. Unless otherwise stated on the face of the Quotation,
the delivery term will be EXW Metal Flow’s warehouse facility listed on the
face of the Quotation. Title and the
risk of loss of or damage to all Products sold will pass to Buyer upon delivery
of the Products as determined by the Quotation’s delivery term. Until the Products have been paid for in
full, Buyer, or any agent of Buyer or third party: (i) will hold the Products
subject to a security interest or lien in favor of Metal Flow allowing for the
right or re-possession by Metal Flow to the extent permitted by applicable law,
(ii) will not alter, remove, destroy, or damage any identifying mark on the
Products or their packaging, and (iii) will keep the Products separate from any
other products. Metal Flow may take
possession of the Products at any time after payment for the Products or any
other payment owed to Metal Flow has become due.
5.
RELEASES. Unless otherwise specified on the face of the
Quotation, on a weekly basis Buyer will provide Metal Flow with a 6-month release forecast. Buyer agrees that it is responsible to
purchase all finished goods and work in process manufactured by Metal Flow, and
all raw materials and components purchased or ordered by Metal Flow, to fill
Buyer’s current and anticipated orders of Products and all volumes of Product
projected on any release forecast issued by Buyer.
6.
INSPECTION. The remedies afforded Buyer under paragraph
9 hereof entitled Warranty will be exclusive for non-conforming Products but will
be unavailable to Buyer if Buyer inspected or reasonably should have inspected
the Products, could have discovered the non-conforming Products upon such
inspection but failed to do so and notify Metal Flow in accordance with
paragraph 9.
7.
PAYMENT. Unless otherwise provided on the Quotation,
payment for the Products will be made Net 30 days from the date of delivery in
United States dollars via electronic funds transfer, with no discount for
earlier payment. In the event that Metal
Flow has reasonable doubt as to Buyer’s credit worthiness, or in the event of a
substantial risk of its claim to payment due to declining assets of the Buyer,
or in the event that the Buyer is in arrears with respect to payment for
Products or payment owed to other creditors, Metal Flow may require advance
payment or collateral and may refuse fulfillment of further shipments until its
demand is fulfilled. If Buyer becomes
delinquent in payment or refuses to accept C.O.D. shipments, Metal Flow will
have the right, in addition to any other right it may have, to cancel any order
of Buyer, to withhold further deliveries, and declare all unpaid amounts for
Products previously delivered immediately due and payable.
8.
PACKAGING. The Products to be delivered hereunder will
be packaged and shipped as provided in the Quotation. In the absence of such a provision in the
Quotation, the Products will be packaged in accordance with sound commercial
practice. If Metal Flow is required to
use Buyer’s returnable packaging and such packaging is unavailable, Metal Flow
may use expendable packaging, the costs of which Buyer will reimburse Metal
Flow. Unless otherwise provided on the
face of the Quotation, export or other special packaging will be an additional
charge to the Buyer.
9.
WARRANTY. (a) Unless otherwise set forth in the
Quotation, Metal Flow warrants to Buyer that, at the time of delivery, the
goods will be free from defects in material (but no such warranty is given if material
supply is directed by Buyer) and workmanship and will conform to the applicable
specifications as stipulated in the Quotation or otherwise agreed to in writing
by Metal Flow. Unless agreed otherwise in writing, Metal Flow is a
build-to-print supplier and is not responsible for or liable to Buyer for
damages (for breach of warranty or otherwise) arising out of or related to the design
of the Products, selection of the Products for Buyer, the suitability of the
Products for any purpose, the integration of the Products into any assembly
manufactured by Buyer, placement of the Products within Buyer’s assembly or the
vehicle and/or additional shielding or protection of the Product as a result of
the environment in which it operates.
Unless otherwise specified in the Quotation, the length of the warranty will
be [3] years from delivery to Buyer.
Non-conformance of the Products with
this warranty will be determined either by mutual written agreement of the
Parties, or, in the event that the Parties cannot reach such agreement, by a
joint root cause analysis of all (or, if impracticable, a random statistically
significant sample, as agreed by the Parties) of the Products and the entire
system or assembly into which the Products are incorporated and/or controlled
by that could have contributed to the alleged non-conformity of the Products in
which Metal Flow is allowed to fully participate and do its own testing. Conformance of the Products to Buyer’s written
specifications is an absolute defense to warranty liability. In the event that the Products are non-conforming,
as determined in accordance with this Section, Metal Flow’s sole liability to
Buyer and/or Buyer’s customer(s) and Buyer’s and/or Buyer’s customer’s sole and exclusive remedy under this
warranty (whether or not the non-conforming Products have been installed in
vehicles or subject of a recall, customer satisfaction or other service
campaign or similar action) is limited, at Metal Flow’s option, to the repair
or replacement of the non-conforming Products; provided, however, that written
notice that the Products are potentially non-conforming must be given by Buyer
to Metal Flow within ninety (90) days after the delivery of the Products or, if
Buyer’s inspection of the Products could not have uncovered the potential
non-conformance, within thirty (30) days after Buyer knew or reasonably should
have known that the Products were potentially non-conforming, including, but
not limited to, through information received from Buyer’s direct or indirect
customer. Transportation charges for the
return of purportedly non-conforming Products to Metal Flow and the shipment of
replacement Products to Buyer will be borne by Metal Flow only if such goods
are returned in accordance with Metal Flow’s instructions.
Specifically excluded from this
paragraph and any warranty are the following, for which Metal Flow will have no
liability whatsoever: (i) Product design defects; (ii) defects or damage caused
by unauthorized or improper attachment, installation, alteration, repair,
maintenance (including failure to provide appropriate maintenance), handling or
operation of the Products by Buyer or any third party; (iii) Products
considered by Metal Flow to be samples, prototype, development or
pre-production, which are provided on an “AS IS” basis only; (iv) any
component, system, or assembly not manufactured or sold by Metal Flow and/or
the integration, incorporation, interaction, connection, placement, or use of
conforming Products in or with any such component, system, or assembly, (v)
Products that have been subject to damage attributable to or caused by: (a)
misuse, abuse, or vandalism or any transit related damage; (b) acts of God or
insurrection; (c) normal wear and tear; (d) or any other acts that are beyond Metal
Flow’s reasonable control.
THE FOREGOING WARRANTIES ARE EXCLUSIVE
AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESSED
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AGAINST
INFRINGEMENT, OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ALL OF
WHICH ARE EXPRESSLY DISCLAIMED BY METAL FLOW.
THE REMEDIES OF THE BUYER WILL BE LIMITED TO THOSE PROVIDED HEREIN TO
THE EXCLUSION OF ANY AND ALL OTHER REMEDIES.
NO AGREEMENT VARYING OR EXTENDING THE FOREGOING WARRANTIES, REMEDIES OR
THIS LIMITATION WILL BE BINDING UPON METAL FLOW UNLESS IN WRITING AND SIGNED BY
A DULY AUTHORIZED OFFICER OF METAL FLOW.
10.
SERVICE PARTS. Unless otherwise specified in the Quotation, Metal
Flow will manufacture service parts for a maximum period of 10 years after end
of serial production. Metal Flow will
have no obligation to supply service parts beyond the period of time specified
in the Quotation, or, if not specified therein, beyond 10 years after the end
of serial production. The price for service parts will be determined by Metal
Flow on an order-by-order basis.
11.
TERMINATION. Metal Flow may terminate the Agreement as a
result of Buyer’s: (i) breach, threat to breach and/or repudiation of any
representation, warranty or other term of the Agreement; (ii) making an
assignment for the benefit of creditors, or proceedings in bankruptcy or
insolvency are instituted by or against Buyer; (iii) request for accommodation
from Metal Flow, financial or otherwise, in order to meet its obligations under
the Agreement; (iv) entering or offering to enter into a transaction that
includes a sale of a substantial portion of its assets or a merger, sale or
exchange of stock or other equity interests that would result in a change in
control within the meaning of the Internal Revenue Code and regulations issued
thereunder; or (v) financial or other condition that could, in Metal Flow’s
sole judgment, endanger Buyer’s ability to perform.
Buyer may only terminate the Agreement
upon a material breach by Metal Flow which remains uncured forty-five (45) days after Metal Flow’s
receipt of written notice of such breach from Buyer. If this Agreement is terminated or canceled prior
to the end of the Program for any reason, in addition to all other rights Metal
Flow may have hereunder or at law or in equity, Buyer will, within forty-five (45) days, pay to Metal Flow: (i) the contract price for all finished
Products manufactured prior to termination or cancelation; (ii) the cost of all
work in process (based upon the contract price multiplied by percentage
completion); (iii) the cost of all raw materials and components purchased or
ordered by Metal Flow to fulfill Buyer’s current and anticipated orders under
this Agreement; (iv) all costs anticipated by Metal Flow to be amortized in the
Product piece price over the expected volumes of the Program as reflected in
the Quotation including, without limitation, for research and development,
capital equipment, tooling and machinery; and (v) Metal Flow’s costs for
settling claims or disputes with its sub-suppliers in connection with component
parts, raw materials, or services related to the Products.
Unless separately agreed in writing by Metal
Flow, Metal Flow will have no obligation to assist Buyer with its transition of
production of the Products to another supplier under any circumstances. In the event Buyer terminates or cancels this
Agreement, Metal Flow is not obligated to release any of Buyer’s Tooling (as
defined in Section 16) nor provide any separately agreed upon transition
support relating to the supply of the Products to Buyer, if any, until Buyer
makes all payments detailed in this section.
12.
EXCUSABLE
DELAYS. Metal Flow will not be liable for any failure
to perform or delay in performance when due to delays of directed suppliers,
acts of God, compliance in good faith with any applicable foreign or domestic
government regulation or order whether or not it proves to be invalid, fires,
floods, windstorms, other natural disasters, riots, wars, labor disputes
(including strikes or lockouts), inability to obtain power, components,
materials, transportation, or equipment or any other cause beyond the reasonable
control of Metal Flow. To the extent
that such causes Metal Flow to reduce or suspend its production and deliveries,
the time for the performance will be extended for as many days beyond the date
thereof as are required to obtain removal of such causes and perform. Buyer will pay all additional costs if Metal
Flow must resource any component (or purchase the finished Products from
another source) to meet Buyer’s requirements. This provision will not, however,
relieve Metal Flow from providing Buyer with prompt notice of any cause for
delay or from using its best efforts to avoid or remove such causes and
continue performance with reasonable dispatch whenever such causes are removed.
13.
LIMITATION AND
EXCLUSION OF LIABILITY. Under all
circumstances, including in the event that any remedy hereunder fails of its
essential purpose or monetary damages may be imposed, and regardless of the
amount or nature of the claim asserted (direct, indemnification or other), Metal
Flow’s liability, whether founded in contract or tort (including negligence),
arising out of or resulting from (i) this Agreement or the performance or
breach thereof, (ii) the design, manufacture, delivery, sale, repair,
replacement or use of Products (iii) the furnishing of any such service, except
in the case of Metal Flow’s gross negligence and/or willful and intentional
misconduct, will not exceed, in any given year, the greater of $300,000 or the
previous calendar year’s total sales revenue of the Product at issue. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO
THE CONTRARY, METAL FLOW WILL NOT BE LIABLE TO BUYER FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES SUSTAINED BY BUYER, INCLUDING,
WITHOUT LIMITATION, SPECIAL, EXEMPLARY, PUNITIVE DAMAGES, LOSS OF PROFITS, RECALL-RELATED
EXPENSES, LOSS OF USE OF THE PARTS, COST OF CAPITAL, COST OF ANY LINE STOPPAGES
OR PLANT SHUTDOWNS OR ANY DAMAGES CLAIMED BY BUYER’S CUSTOMER.
14.
INTELLECTUAL
PROPERTY. In the absence of a written agreement to the
contrary, all right, title to, and interest in all intellectual property
(including patents, trade secrets, copyright, design rights, and trade marks)
and materials (including all plans, diagrams, specifications, designs, data,
drawings and models) which are developed, designed or generated by Metal Flow
in the performance of the Agreement will be owned by Metal Flow as legal and
beneficial owner. Only while this
Agreement is in effect, Buyer is granted a limited non-exclusive license to
use, sell and repair the Products as needed to incorporate the Products into
its assembly. All right, title to and
interest in all intellectual property (including patents, trade secrets,
copyright, design rights, and trade marks) and materials (including all plans,
diagrams, specifications, designs, data, drawings and models) which are
developed, designed or generated by Buyer will be owned by Buyer.
15.
INDEMNIFICATION. To the fullest extent permitted by law, Buyer
expressly agrees to indemnify and hold harmless Metal Flow, its affiliates,
officers, directors, employees, agents, successors and assigns (“Indemnitees”) and defend the
Indemnitees from and against any and all claims, liabilities, lawsuits, losses,
costs, expenses, or damages (including actual attorney and professional fees)
of any kind or nature whatsoever, including, without limitation, claims for
personal injury (including death), property damage or intellectual property
infringement, whether such claims are premised on contract, tort or otherwise,
including strict liability, which arise out of or result from, or are in any
way related to the Agreement and/or the Products sold hereunder, except to the
extent of Metal Flow’s willful misconduct or gross negligence.
16.
BUYER’S
PROPERTY. All materials, tools, dies, special dies,
patterns, jigs, gauges, fixtures, drawings, designs, samples, tooling aids,
molds and/or any other property that is separately negotiated and fully paid
for by Buyer in accordance with the payment terms set forth in the Quotation or
otherwise under a separate written agreement will become the property of Buyer
(“Buyer’s Property”). During its use at Metal Flow’s facility, Buyer’s
Property will be held for the exclusive use of Buyer and will be maintained in
accordance with Metal Flow’s usual preventative maintenance practice. Metal Flow will be under no obligation
whatsoever to maintain, repair, or replace any of Buyer’s Property beyond that
normal preventative maintenance required to allow for production of the
estimated volume at the capacity rates and other terms set forth in the
Quotation. Buyer will bear the risk of
ordinary wear and tear, loss or damage other than such intentionally caused by Metal
Flow. Metal Flow’s insurance does not
cover Buyer’s Property. It is Buyer’s
sole responsibility to insure Buyer’s Property.
At the request of Buyer and to the extent practicable, Buyer’s Property will
be identified by appropriate markings.
Prices for Buyer’s Property do not include transportation costs, storage
beyond completion of the Agreement, or the costs of marking or packaging. Buyer acknowledges that Metal Flow’s
possession of Buyer’s Property is integrally related to Metal Flow’s
performance under the Agreement.
Consequently, upon termination, expiration or cancellation of the
Agreement, Metal Flow will have a lien on and may maintain possession of Buyer’s
Property until Metal Flow is paid in full for all amounts due under the
Agreement. Furthermore, Buyer will not
have any interest in or right to purchase any property, including tooling,
owned by Metal Flow or any other party, even if such property is used in the
production of the Products.
17.
SETOFF. Buyer acknowledges and agrees that it
may not set off or otherwise debit against or recoup from any amounts due or to
become due to Metal Flow, any amounts due or become due to Buyer, unless and
until Metal Flow agrees in writing to such setoff or recoupment, and that it will
not exercise any right to setoff or recoupment in connection with any disputed,
contingent, or unliquidated claim. In
the event Buyer fails to the comply with the foregoing and improperly sets off,
debits or recoups from amounts due or to become due to Metal Flow, Metal Flow will
be entitled, in addition to all of its other rights hereunder or otherwise, to
withhold shipments of Products until Buyer reverses such improper set off,
debit and/or recoupment.
18.
CONFIDENTIALITY. Any and all information, in whatever form
transmitted, and items embodying information (including photographs, samples,
models, prototypes) disclosed by or on behalf of Metal Flow to the Buyer or to
which Buyer is exposed, including, without limitation, manufacturing methods,
procedures, processes, technologies, know-how, trade secrets, formulas, ideas,
inventions, drawings, specifications, product data, designs, software, business
plans, marketing plans, business operation information, financial information,
pricing information, cost information, strategies, customer lists, supplier
lists, and any representations, compilations, analysis, and summaries of the
foregoing (“Confidential Information”)
will be held by Buyer in strict confidence and used solely for the purpose of
doing business with Metal Flow. Buyer will
restrict access to and limit disclosure of Metal Flow’s Confidential
Information to only those of Buyer’s employees, directors, officers, and
advisors with a need to know the information to accomplish the purpose of this Agreement,
provided that they have been instructed and are bound in writing not to
disclose the Confidential Information or use it for any purpose other than as
permitted under this Agreement and that Buyer will at all times be fully liable
to Metal Flow for any breach of this Agreement by such persons and any
entities. Buyer will not disclose or
transfer any of Metal Flow’s Confidential Information, either directly or
indirectly, to any other person or entity without the written consent of Metal
Flow. Under no circumstances is Metal
Flow required to provide any of its financial or other Confidential Information
to Buyer.
19.
BUYER’S
CONTRACTS WITH ITS CUSTOMER. Regardless of
whether Buyer was directed to use Metal Flow for the manufacture of the
Products, Metal Flow is a supplier to Buyer only, and unless Metal Flow has
signed a separate agreement with Buyer’s customer, Metal Flow will not be bound
by any terms and conditions imposed upon Buyer by Buyer’s customer, whether or
not Metal Flow has notice of such terms.
Buyer’s obligations under the Agreement will not be affected by: (i) the
filing of a bankruptcy or insolvency proceeding or an assignment for the
benefit of creditors by or against Buyer’s customer under the laws of any
country; (ii) a consensual, negotiated or Court imposed or authorized
amendment, modification, supplementation, or termination of the contract
between Buyer and its customer unless Metal Flow has consented to such
amendment, modification, supplementation, or termination of the contract in
writing, or (iii) any agreement, resolution, or compromise that Buyer may agree
to with Buyer’s customer with respect to any dispute involving the components,
systems or assemblies which contain the Products, including, without
limitation, for any breach of warranty and/or recall, and (iv) failure of
Buyer’s customer to timely pay Buyer for any equipment or tooling or any
components, systems, or assemblies containing the Products.
20.
COMPLIANCE WITH
LAWS. In the performance of the Agreement, Buyer will
fully comply with all applicable laws, statutes, rules, regulations,
conventions, orders, standards and ordinances, including, without limitation,
all applicable anti-corruption laws, including but not limited to the U.S.
Foreign Corrupt Practices Act, as such laws may be amended from time to
time.
21.
EXPORT CONTROLS. Metal Flow and Buyer acknowledge and agree
that the Products sold hereunder are subject to export controls imposed by the
United States government under various federal laws. Buyer agrees that it will not export or
re-export or otherwise transfer any Products or technical data provided
hereunder to any country, person, entity or end-used subject to U.S. export
restrictions. Buyer specifically agrees
not to export or re-export the Products or technical data hereunder (i) to any
country or party to which the United States has, at the time of the transfer,
embargoed or restricted the export or re-export of the relevant products or
services; (ii) to any end-user who the Buyer knows will utilize the Products or
technical data for any purposes prohibited by applicable law or regulations
including, without limitation, in the
design, development or production of nuclear, chemical or biological weapons;
or (iii) to any end-user who has been prohibited from participating in U.S
export transactions by any federal agency of the U.S. government. Metal Flow may refuse to enter into or
perform any order, and may cancel any order, placed under this Agreement if it
determines, in its sole discretion, that entry into or performance of such
order would violate any applicable law or regulation of the United States or
any other government.
22.
ASSIGNMENT. Buyer may not assign this Agreement, in whole
or in part, without the prior written consent of Metal Flow. Any attempted assignment or subcontracting by
Buyer without such consent will be ineffective and will not relieve Buyer of
its duties or obligations under this Agreement.
In the event of a proper assignment, the contract will be binding upon
and inure to the benefit of the Buyer’s successors and assigns.
23.
RELATIONSHIP OF
THE PARTIES.
Buyer and Metal Flow are independent
contractors, and nothing in the Order makes either party the employee, agent or
legal representative of the other party for any purpose. Neither party has authority to assume or to
create any obligation on behalf of the other party. Metal Flow is not responsible for any
obligation with respect to the employees, agents or legal representatives of Buyer
or its contractors or customers.
24.
GOVERNING LAW,
JURISDICTION, FEES AND STATUTE OF LIMITATIONS. The validity, interpretation and enforcement
of this Agreement, matters arising out of or related to this Agreement or its
making, performance or breach, and any and all related matters will be governed
by the laws of the State of Michigan.
The provisions of the United Nations Convention on Contracts for the
International Sale of Goods, and any conflict-of-laws provisions that would
require application of another choice of law, are excluded. The Parties hereby irrevocably and
unconditionally submit to the exclusive jurisdiction of the applicable state
and federal courts of the State of Michigan.
Buyer will pay Metal Flow’s actual attorney fees, costs, and expenses
incurred in enforcing any provision of this Agreement. Any legal action arising out of or related to
this Agreement, whether alleging breach of warranty or other breach, default or
tortious act by Metal Flow, must be brought by Buyer, or any other person
making a claim under this Agreement, within two (2) years after the date of the
receipt of the Product(s) sold herein, or one (1) year after Buyer or such
person could reasonably have discovered the basis for the action, whichever
comes first.
25.
WAIVER. No waiver will be effective unless it is in
writing. The failure of Metal Flow to
require performance under any provision of this Agreement will in no way affect
Metal Flow’s right to require full performance under such provision at any
subsequent time, nor will the waiver by Metal Flow of a breach of any of the
terms and conditions of this Agreement constitute a waiver of any other breach
of the same or any other term.
26.
SEVERABILITY. If one or more provisions of the Agreement
should be or become invalid or unenforceable, the remaining provisions of this
Agreement will remain in full force and effect, and the parties will substitute
the invalid or unenforceable provision with a valid provision that as closely
as possible achieves the same business purpose as the invalid or unenforceable
provision.
27.
ENTIRE CONTRACT. This Agreement contains the entire
understanding of the parties and is intended as a final expression of their
agreement and a complete statement of the terms in connection
with the subject matter of the Agreement, and may not be amended, modified or
otherwise supplemented unless any such amendment, modification, or
supplementation is done so in writing and explicitly references this Agreement
and is signed by both authorized representatives of both parties hereto.
[August 2019]