Terms of Sale

1. Offer; Acceptance. All quotations covering Seller’s goods are made and all agreements or purchase orders for said goods are accepted on the condition that the terms and conditions set forth herein shall be applicable thereto and shall supersede any provision on Buyer’s purchase order or other documents received by Seller which are at variance with or purport to be in addition to these terms and conditions. All such additional or varying provisions of Buyer’s purchase order shall be deemed to be material deviations herefrom and of no force or effect. In any event, Buyer shall be deemed to have assented to all terms and conditions contained herein if part or all of the goods described herein are accepted by Buyer. All quotations are for immediate acceptance and are subject to approval if issued by a salesman or selling agent of Seller.

2. Prices. Prices are net and are not subject to trade or other discounts and do not include local, state, or federal taxes, foreign taxes or duties, costs of special packaging and insurance, which, when applicable, shall be paid by Buyer. Prices are subject to equitable adjustment upward at any time before delivery should economic factors beyond Seller’s reasonable control, such as the price of materials or governmental actions, necessitate such action.

3. Payment. Payment may be made by any valid Visa, Mastercard, American Express, or Discover credit cards. Buyer expressly states that he has full authority to use said charge card. In the event of the bankruptcy or insolvency of Buyer, Seller shall be entitled to cancel any order then outstanding and shall be entitled to reimbursement for all costs and expenses theretofore incurred, plus incidental and consequential damages. Payments not received when due are delinquent. Interest at a rate of 1.5% per month (18% per annum) or the maximum rate permitted by law, whichever is greater, may be assessed on a monthly basis on delinquent accounts, and Buyer agrees to pay same. Buyer further agrees to reimburse Seller for any and all expenses associated with the collection of past due invoices of Buyer including, but not limited to, attorney’s fees and collection commissions.

4. Shipment. The goods shall be shipped F.O.B. Sellers premises and Seller shall exercise sole discretion in selecting a method of shipment unless a preferred method of shipment is specified in writing by Buyer and Seller does not object to such method by notice to Buyer. Title to the goods shall pass to Buyer upon delivery thereof to the applicable carrier. Thereupon, Buyer shall be responsible therefore.

5. Time of Delivery. Quoted delivery dates are Seller’s best estimates of when the goods will be shipped. Seller assumes no liability for losses, expenses, incidental or consequential damages due to delays or failure to deliver.

6. DISCLAIMER: LIMITATION OF LIABILITY. EXCEPT AS PROVIDED IN WRITING BY SELLER AND SEPARATELY ACCOMPANYING EACH INDIVIDUAL PRODUCT SOLD, NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, NOR ANY AFFIRMATION OF FACT OR PROMISE IS MADE BY SELLER WITH RESPECT TO THE GOODS WHICH ARE SOLD PURSUANT HERETO. SELLER SHALL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL LOSSES, DAMAGES OR EXPENSES, DIRECTLY OR INDIRECTLY ARISING FROM THE SALE, HANDLING OR USE OF THE GOODS, OR FROM ANY OTHER CAUSE RELATING THERETO, AND SELLER’S LIABILITY HEREUNDER IN ANY CASE IS EXPRESSLY LIMITED TO THE REPAIR OR REPLACEMENT (IN THE FORM ORIGINALLY SHIPPED) OF GOODS NOT COMPLYING WITH THIS AGREEMENT OR, AT SELLER’S ELECTION, TO CREDITING BUYER WITH AN AMOUNT EQUAL TO THE PURCHASE PRICE OF SUCH GOODS, WHETHER SUCH CLAIMS ARE FOR BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE.

7. Claims - Notice of Defects. Buyer agrees to accept delivery of the goods unless they do not conform to the description herein or are materially defective. Seller will give consideration to settlement of Buyer’s claims, but in no event shall Seller be liable on any claims unless notice of the claim is received by Seller within 15 calender days after delivery. Buyer shall afford Seller prompt and reasonable opportunity to inspect all goods as to which any claim is made. If Seller and Buyer are unable to reach settlement of any claim relating to goods covered hereby, Buyer must institute legal action against Seller within one year after such claim arises and, thereafter, all such claims shall be barred notwithstanding any statutory period of limitations to the contrary.

8. Proprietary Rights. Seller makes no warranty that the goods will be delivered free of the rightful claim of any third party by way of infringement or the like. If Seller determines, in its sole discretion, that making, using or selling the goods would result in the infringement of any proprietary right, Seller reserves the right to withdraw the quotation and to cancel this agreement, without liability on the part of Seller.

9. Waiver of Subrogation. If Buyer or any person institutes or is otherwise a party to any action, proceeding or claim and Seller is joined therein or claimed against in connection with the same, or if Buyer otherwise suffers any loss, Buyer agrees not to make a claim or bring an against the Seller for any such loss (regardless of cause, including the negligence of the Seller) which is actually or required to be covered by insurance and for which insurance benefits are paid or are payable. Buyer agrees that the limitations of liabilities set forth herein shall be enforceable even in the event of the fault or negligence of Seller, and shall extend to the directors, officers, shareholders, employees, agents and affiliates or subsidiary companies of Seller, and their respective heirs, personal representatives, successors and assigns.

10. Changes. Prices are subject to adjustment if Buyer requests changes in specifications, quantities or delivery requirements. All of the terms and conditions of this invoice shall apply to goods to which such changes are made, and no modification in the terms and conditions hereof shall be binding on Seller unless contained in writing signed by an officer of Seller and expressly stating both that such terms are being modified and the nature of such modification.

11. Cancellation. Buyer may cancel this order, in whole or in part, upon both written notice to Seller and payment of cancellation charges, which charges shall be the sum of: (i) the price of all goods that have been delivered and not previously paid for, plus (ii) the actual cost incurred by Seller that is properly allocable to the goods not delivered at the time of decrease or cancellation, including, without limitation the costs of materials or other items purchased for use in producing such goods plus (iii) the profit, including reasonable overhead, that Seller would have made from full performance by Buyer, plus (iv) the costs of engineering, molds, tools, dies, prototypes and other items produced by or for Buyer plus (v) the reasonable costs incurred by Seller in making settlement and effecting collection hereunder. Buyer may require delivery of any goods for which payment is made.

12. Nondelivery or Nonperformance. Seller shall not be liable for any failure to deliver or otherwise perform hereunder when delivery has been made impractical by fire, embargo, strike, difference with employees, accidents, Acts of God, inability to secure materials from usual sources of supply or any other circumstances beyond Seller’s reasonable control, either of the foregoing nature or of any other nature.

13. Compliance. The Seller represents that with respect to the production of the goods and/or performance of services stated herein, it has fully complied with all of the applicable provisions of the Fair Labor and Standards Act of 1938, as amended, including sections 6, 7, and 12, regulations under section 14, and all other applicable Administrative Regulations. In connection with the performance of work hereunder Seller agrees to comply with all provisions, including specifically paragraphs (1) through (7) Sec. 202, of Executive Order No. 11246 of September 24, 1965, as amended, and rules and regulations and other pertaining thereto.

14. Miscellaneous. This agreement and the terms and conditions stated herein contain the entire agreement between the parties relating to the subject matter hereof, and any representation, promise, condition, affirmation of fact, course of prior dealing and usage of trade not incorporated herein shall not be binding on either party. Except as may be expressly provided to the contrary in writing, the provisions of this contract are for the benefit of the parties hereto and not for any other person. The state and federal courts of Cuyahoga County, Ohio shall have exclusive jurisdiction and venue over disputes arising from this agreement, except that the Seller shall at its sole discretion also have the right to invoke the courts of law having jurisdiction at the Buyer’s place of business, or seek arbitration, and Buyer hereby consents to the same.

15. Severability. Each provision hereof is severable. If any provision is held invalid or unenforceable, the remainder shall nevertheless remain in full force and effect.