CleanRooms InternationalCleanRooms International

TERMS AND CONDITIONS OF SALE

1. Agreement: In consideration of Clean Rooms International Inc. (“Seller”) agreeing to provide goods or services to the buyer identified in any of the Agreement documents as defined below (“Buyer”), the Buyer agrees as follows:

a. These Terms and Conditions of Sale together with the terms and conditions of any other credit application, quotation, confirmation and/or invoice prepared by Seller constitute the agreement between the parties (the “Agreement”).

b. Buyer agrees to each and every term contained in the Agreement as a precondition to Seller’s performance. Any term or condition in any purchase order or other form or document issued by Buyer, regardless of the materiality of the term or condition, that differs from or is contrary to the terms and conditions contained in the Agreement are objected to and excluded unless expressly agreed to in a written acknowledgment issued by Seller.

c. No other terms or conditions not set forth in the Agreement shall apply unless expressly agreed to in a written acknowledgment issued by Seller.

2. Credit.

a. Buyer shall pay for all goods and services at the time Buyer places an order unless Buyer has submitted to Seller a credit application in a form acceptable to Seller.

b. If Buyer’s financial responsibility shall become unsatisfactory to Seller at any time and for any reason, Seller shall have the right, in addition to whatever other rights Seller may have at law or equity, to require payment in cash or to obtain satisfactory security from Buyer before making any further deliveries.

3. Payment:

a. Unless otherwise agreed to the contrary in writing by Seller, payment shall be made by the 30th day following the date the goods are shipped or services provided.

b. All payments shall be made in U.S. dollars.

c. A time-price differential charge equal to 1.5% per month (18.0% per annum) will be charged on all balances not paid in full as of the 49th day following the date the goods are shipped or services provided.

d. Seller reserves the right to charge a 2.5% processing fee for any payments made by credit card.

e. In case any payment is not made when due, Seller shall have the right, in addition to its other remedies, to seek specific performance of this Agreement, to suspend any further deliveries, alter payment terms, or terminate this Agreement. Approval of credit for one or more deliveries shall not be deemed a waiver of this provision.

4. Cancelation Fee/Restocking Fee. Unless otherwise agreed in writing by Seller, Buyer shall pay to Seller a cancellation charge of a minimum of 20% of the gross amount of the order for any non-custom part order cancelled later than one (1) business day after the date of the order. No order for custom parts may be cancelled later than one (1) business day after the date of the order unless agreed to in writing by Seller. Returns of any non-custom part are subject to a minimum restocking fee of 20% of the gross amount of the item in question. No custom parts may be returned unless agreed to in writing by Seller.

5. Warranty.

a. Seller warrants that the goods sold hereby shall be free from defects in material and workmanship for a period of one (1) year from date of purchase.

b. If Buyer believes that it has any right to a warranty claim pursuant to the warranty set forth above, Buyer shall notify Seller of such claim within 30 days of when Buyer discovered, or should have discovered, such claim. Failure to timely notify Seller of a warranty claim shall be deemed an absolute and unconditional waiver of such claim.

c. The Buyer’s exclusive remedies for any warranty claim are, at Seller’s option, (i) correcting the goods, (ii) supplying a replacement, or (iii) return of the price paid for such goods. All limitation set forth in Section 12 below apply to warranty claims.

d. The express warranty does not apply to claims resulting from negligence of the Buyer, misuse and/or abnormal wear and tear.

6. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN TO THE CONTRARY, SELLER DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THE GOODS AND SERVICES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION DESCRIPTION, QUALITY, DESIGN, PERFORMANCE, SPECIFICATIONS, CONDITION, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. BUYER ACKNOWLEDGES THAT BUYER IS NOT RELYING ON SELLER’S SKILL OR JUDGMENT TO SELECT OR FURNISH GOODS SUITABLE FOR ANY PARTICULAR PURPOSE. NO PERSON, INCLUDING BUYER, IS AUTHORIZED BY SELLER TO MAKE WARRANTIES OR ASSUME ANY LIABILITY FOR SELLER WITH RESPECT TO THE GOODS OR SERVICES. ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES AND SHALL NOT BE RELIED ON BY BUYER AND ARE NOT PART OF THE AGREEMENT. SELLER’S WARRANTY OBLIGATIONS, AND BUYER’S REMEDY, ARE SOLELY AS STATED IN THIS AGREEMENT.

7. Notice of Claims. Buyer shall inspect the goods or services provided by Seller immediately upon delivery. Notice of any claim for shortage or defects discoverable on such inspection shall be made to Seller within five (5) days thereafter. Buyer shall, upon Seller’s request, furnish reasonable proof of any claimed defect and Seller shall be given an opportunity to investigate. Failure of Buyer to give notice of any claim within the specified period shall be deemed an absolute and unconditional waiver of such claim.

8. Risk of Loss: Regardless of whether Seller or Buyer procures shipping, the goods sold pursuant to this Agreement are sold F.O.B. Seller’s place of business. Buyer assumes responsibility for all costs of transportation. Risk of loss shall pass to Buyer when Seller completes its performance with respect to delivery of the goods to Buyer.

9. Force Majeure: Seller shall not be liable for any delay or impairment of performance resulting in whole or in part from any cause beyond Seller’s control including, without limitation, fires, floods, explosions, accidents or other catastrophes, acts of God, strikes, lockouts or labor disruption, wars, riots or embargo delays, government allocations or priorities, shortages of transportation, fuel, labor or materials, inability to procure the goods or raw materials, severe weather conditions, changes of law or regulation, or any other circumstance or cause beyond Seller’s control. Such excuse from performance shall extend so long as the event continues to delay or impair Seller’s performance.

10. Security Interest: Title to the goods sold pursuant to the Agreement shall remain with Seller until all payments therefore shall have been made in full in cash. Seller shall retain a security interest in the goods sold to Buyer, the accounts receivable related to the goods and the proceeds from the sale of the goods as security for Buyer’s performance of its obligations. Buyer hereby authorizes Seller to create and file a financing statement in the appropriate governmental unit. Buyer agrees to execute and deliver such other documents as necessary to create, perfect, preserve or enforce such security interest.

11. Miscellaneous:

a. Unless specifically noted otherwise, prices do not include present or future federal, state or local taxes. All taxes shall be the Buyer’s responsibility, unless required by law, and then shall be for the Buyer’s account.
b. Quoted deliveries are based on estimates at the time of quotation. Seller will devote its best efforts to meeting the delivery schedules but assumes no liability for additional costs or damages resulting from later deliveries.

12. Limitation of Liability:

a. Exclusive Remedy. The exclusive remedy for the Buyer for any damages incurred as a result of, or relating to, the goods or services and/or this Agreement is limited to the return of the price paid for such goods and services. In no event shall Seller be liable to Buyer or any other person or entity for damages of any kind, including, without limitation, indirect, special, incidental, consequential or punitive damages, arising from the goods or services or in connection with the use or inability to use the goods or services for any purpose whatsoever, irrespective of whether the claims or actions for such damages are based upon contract, tort, negligence, strict liability, warranty or otherwise. In no event shall Seller incur any liability whatsoever for damages of any kind arising out of or relating to delay in delivery.
b. Purchase Price: The disclaimer of warranties and limitation of liabilities set forth herein shall apply even if the same fail of their essential purpose. Buyer acknowledges and agrees that Seller has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. No other remedies shall be available to Buyer other than as set forth herein.

13. Indemnification: Buyer shall indemnify, defend and save Seller harmless from any liability, loss, cost, penalty, damage or expense, including attorneys’ fees, which Seller may incur as a result of any claim, damage, injury, cause of action, proceeding, citation, or work stoppage arising out of or in any way connected with this Agreement and/or Buyer’s installation, modification, or use of any goods or services provided by Seller. This indemnity includes all costs and attorney’s fees, regardless of whether litigation is filed or arbitration demanded. This indemnity survives the termination or completion of this Agreement. This indemnity also includes all claims for patent infringement or any intellectual property claims.

14. Costs of Collection: In the event Buyer or any guarantor shall default in any way on Buyer’s or guarantor’s obligations under this or any other Agreement, including without limitation the failure to make a timely payment, Buyer and guarantor shall be liable to Seller for all of Seller’s costs of collection including, but not limited to, attorney’s fees and expenses.

15. Insurance/Bonding: The Buyer must maintain and pay for insurance coverage in the amounts, of the types and with the limits as are typical for companies in Buyer’s industry. Buyer agrees and acknowledges that Seller is entering into this Agreement in reliance on Buyer’s representation that the policies of insurance contemplated by these provisions will be in place, with all premiums paid. Buyer agrees to provide Seller proof of such insurance on request by Seller.

16. No Waiver by Seller: Seller shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by Seller. No delay or omission on the part of Seller in exercising any right shall operate as a waiver of such right or any other right. A waiver by Seller of a provision of this Agreement shall not prejudice or constitute a waiver of Seller’s right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by Seller, nor any course of dealing between Seller and Buyer shall constitute a waiver of any of Seller’s rights or of any of Buyer’s obligations as to any future transactions. Whenever the consent of Seller is required under this Agreement, the granting of such consent by Seller in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Seller.

17. Integrated Agreement: This Agreement constitutes Seller’s and Buyer’s entire understanding with respect to the subject matter hereof. All prior or contemporaneous agreements whether oral or in writing, not included or incorporated herein by reference, are hereby disavowed and canceled. Modification or amendments of this Agreement must be in writing and signed by the party to be charged in order to be effective.

18. Inconsistent Terms Overridden. The terms of this Agreement shall prevail and control in the event of any conflict between the terms and conditions contained in this Agreement and the terms and conditions of documents referenced in, or incorporated into this Agreement.

19. Governing Law/Jurisdiction-Venue/Statute of Limitations:

a. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan without regard to conflict of law doctrines.
b. By entering into this Agreement, Buyer waives any right to a jury trial.
c. By entering into this Agreement Buyer agrees to submit itself to jurisdiction in Michigan and to venue in any state or federal court located in Kent County, Michigan.
d. BUYER WAIVES ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY IF NOT BROUGHT WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION FIRST ACCRUED TO BUYER.