SMI Molding, Inc.

 

Sales Terms and Conditions

 

1. Acceptance. The following terms and conditions (“Terms and Conditions”) apply to all transactions for a good (“Good”) produced by Sports Molding Inc (“SMI”), and each Quotation (defined below), order acknowledgement, and invoice from SMI and to each purchase order (“Purchase Order”) from each customer (“Customer”), and are the only terms and conditions applicable to the sale of SMI’s Goods, except those relating solely to quantities, shipping instructions, or descriptions of the Goods set forth in Customer’s Purchase Orders (collectively, “Purchase Order Terms”). Purchase Orders, if accepted by SMI, are accepted subject to the Terms and Conditions set forth herein. SMI HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY CUSTOMER, WHETHER OR NOT CONTAINED IN ANY OF CUSTOMER’S BUSINESS FORMS OR ON CUSTOMER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SHALL BE VOID AND OF NO EFFECT UNLESS IN A WRITTEN AGREEMENT, SIGNED BY AN OFFICER, DIRECTOR, OR LEGAL COUNSEL (“Authorized Representative”) OF SMI, WHICH SPECIFICALLY REFERS TO “A MODIFICATION OF” OR “DEVIATION FROM” THE LANGUAGE OF “SMI’S GLOBAL TERMS AND CONDITIONS”. The parties agree that it is their intention that the battle of the form section of §2-207 of the Uniform Commercial Code shall not apply to these Terms and Conditions.

2. Quotations. Any quotation or pricing proposal (a quotation or pricing proposal hereinafter “Quotation”) is only valid if in writing and then only for thirty (30) days from the date of the Quotation unless otherwise set forth in such Quotation. All Quotations by SMI are subject to change or withdrawal without prior notice to Customer unless otherwise specifically stated in the Quotation. SMI shall have no obligation to provide, deliver, or sell Goods covered by SMI’s Quotation unless and until SMI issues an order acknowledgement or upon the shipment of Goods by SMI.

3. Prices. Unless otherwise stated in the applicable documents, prices are in the currency of the country where the Goods are produced and are subject to change without notice. If a raw material or component is subject to a price increase, or if a supplier raises its prices or imposes a surcharge on SMI, SMI reserves the right to increase prices and/or surcharge Customer and Customer agrees to accept such price increase or surcharge until the term of such price increase or surcharge or until the termination of the contract to which these Terms and Conditions apply is reached. SMI reserves the right to charge Customer overtime and other applicable charges to the extent that SMI incurs additional costs in producing Goods due to the actions (or inaction) of Customer. Time of payment is of the essence. All orders are accepted subject to SMI’s price in effect at time of shipment. Customer is responsible to pay for, on or prior to the end of any program, order, etc., any unused materials (packaging, coating materials, etc.) specifically made or acquired for Customer’s order.

4. Terms of Payment. The inspection rights granted to Customer will not affect or alter the payment terms or the timing of Customer’s payment obligations. Under no circumstances will Customer have a right of setoff. SMI shall have the right to offset its payables against its receivables from Customer. Unless otherwise expressly agreed to by SMI in SMI’s Quotation, terms of payment are thirty (30) days net from the date of SMI’s invoice. In the event of Customer’s failure to pay SMI timely SMI reserves the right to take any or all of the following actions: (a) any actions allowable under law; (b) withhold shipment of Goods; (c) demand the return of previously shipped Goods; (d) institute new payment terms; and/or (e) cancel any Purchase Orders. Customer agrees to pay interest on overdue invoices at the rate of the lesser of one and one half percent (1 ½ %) per month or the highest rate permitted by law. If Customer fails to make any payment as required, Customer agrees to indemnify SMI for all costs and expenses, including reasonable attorneys’ fees, court costs, and associated expenses incurred by SMI in collecting the past due amount.

5. Credit Approval. All Quotations and shipments to be made hereunder are subject to the approval of SMI’s accounting department. If, in SMI’s sole judgment, the financial viability or responsibility of Customer is or becomes unsatisfactory, then SMI may, at its option and without prejudice to any of its other remedies hereunder or at law or equity, (a) defer or decline to make any shipments hereunder except upon receipt of satisfactory security or cash payments in advance, and / or (b) terminate all Purchase Orders of Customer.

6. Cancellation. SMI reserves the right to cancel any Purchase Orders or releases thereunder, or terminate any Agreement relating to Goods on not less than thirty (30) days notice. Unless specifically agreed to by SMI in writing signed by an Authorized Representative of SMI, once SMI has either accepted a Purchase Order or has begun taking actions with respect to such Purchase Order, such Purchase Order cannot be canceled, terminated or modified by Customer in whole or in part except with SMI’s consent in a writing signed by an Authorized Representative of SMI and then only upon terms and conditions to be agreed upon which shall include protection of SMI against all losses related to the termination. If Customer nonetheless repudiates the Purchase Order or contract or notifies SMI to proceed no further therewith, SMI shall have the right to deliver all Goods, and Customer agrees to accept same and to pay to SMI the contract price for all such Goods plus reimbursement of any costs associated with the early termination.

7. Inspection / Non – Conforming Shipments. SMI grants Customer the right to inspect Goods for a period of fifteen (15) business days immediately following delivery (“Inspection Period”). Customer must notify SMI of any Goods that do not conform to the terms applicable to its order within the Inspection Period, and afford SMI a reasonable opportunity to inspect such Goods and cure any nonconformity. If Customer fails to provide SMI with a Non-Conformance Report (as defined below) within the Inspection Period Customer shall be deemed to have accepted such Goods. Customer will have no right to return any Good without SMI’s prior written authorization. Any return authorized by SMI must be made in accordance with SMI’s return policies then in effect and must be accompanied by a written statement by Customer documenting the reason why the Goods were returned. SMI, in its sole discretion, may reject any return of Goods not approved by SMI in accordance with this paragraph or otherwise not returned in accordance with SMI’s then current return policies.

8. Title / Risk of Loss / Delivery. Unless other arrangements are made in writing SMI anticipates use of common carriers for transport of Goods. Unless specifically otherwise provided in SMI’s invoice or Quotation, the carrier, not SMI, will bill for freight rates and other transportation charges. Freight payments are solely the responsibility of the Customer, to be paid directly by the Customer to the carrier. SMI reserves the right to adjust prices to cover additional costs a) when the Customer specifies that deliveries are to be made in installments that do not conform to SMI’s typical production schedule, and b) when SMI elects to deliver as specified by Customer. All Goods shall be shipped F.O.B. SMI’s plant and shall become the property (if not already the property) of Customer upon delivery to the carrier and receipt of payment in full to SMI. Customer assumes all risk and liability for loss, damage, or destruction, as well as the results of any use or misuse by third parties who may acquire or use the Goods illicitly after the delivery to the carrier. Unless mutually agreed upon in writing, shipping dates are approximate and are based upon prompt receipt of all necessary information. SMI reserves the right to ship items in a single or multiple shipments.

9. Indemnification. Customer shall indemnify and hold SMI harmless from and against any and all claims, demands, liabilities, suits, actions, proceedings, damages, costs and expenses (including, but not limited to, attorney’s fees), etc. incident to or arising out of or in connection with or relating to Customer’s negligent or willful acts related to this Agreement. SMI may participate in any such defense to such extent as it, in its sole discretion, may determine.

10. WARRANTY. SMI WARRANTS, ONLY THAT THE GOODS CONTRACTED FOR HEREUNDER (A) WILL CONFORM TO THE DESCRIPTION ON THE FACE OF THE QUOTATION, INVOICE, PACKING LIST, ETC., AND (B) WILL BE CONVEYED FREE AND CLEAR OF ANY LIEN, SECURITY INTEREST OR ENCUMBRANCE CREATED BY SMI OR ANY PARTY CLAIMING BY, THROUGH, OR UNDER SMI.

SMI SHALL HAVE THE RIGHT EITHER TO REPLACE OR REPAIR ANY DEFECTIVE GOODS (TO THE EXTENT SUCH DEFECT IS PROXIMATELY CAUSED BY SMI), TO REFUND THE CONTRACT PRICE, REPLACE (OR PAY FOR REPLACEMENT OF) DAMAGED PARTS, OR TO GRANT A REASONABLE ALLOWANCE ON ACCOUNT OF SUCH DEFECTS, AND SMI’S LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR DEFECTIVE GOODS SHALL BE LIMITED SOLELY TO RE-PERFORMANCE, REPLACEMENT, REPAIR, REFUND OR ALLOWANCE AS SMI MAY ELECT.

SMI SHALL BE GIVEN A REASONABLE OPPORTUNITY TO INVESTIGATE ALL NON-CONFORMANCE CLAIMS.

11. DISCLAIMER OF FURTHER WARRANTIES. EXCEPT AS SET FORTH ABOVE, SMI MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE) WITH RESPECT TO ITS GOODS.

12. LIMITATION OF LIABILITIES AND REMEDIES. SMI SHALL NOT BE LIABLE, AND CUSTOMER WAIVES ALL CLAIMS AGAINST SMI FOR INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON SMI’S NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. SMI WILL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS, DAMAGE, OR INJURY TO PERSONS OR PROPERTY RESULTING FROM THE HANDLING, STORAGE, TRANSPORTATION, RESALE, OR USE OF ITS GOODS IN MANUFACTURING PROCESSES, OR IN COMBINATION WITH OTHER SUBSTANCES, OR OTHERWISE.

13. Technical Data. All physical properties, statements and recommendations are either based on the tests or experience that SMI believes to be reliable, but they are not guaranteed.

14. Tooling / Molds / Dies. Unless otherwise agreed in a writing signed by an Authorized Representative of SMI, all material, equipment, facilities, and special tooling (tooling includes, but is not limited to, tools, jigs, dies, fixtures, molds, patterns, special taps, special gauges, special test equipment, and manufacturing aids and replacements thereof) used in the manufacture of the Goods covered by any Purchase Order shall remain the property of SMI.

15. Taxes. Customer shall pay to SMI, in addition to the agreed price, the amount of all fees, duties, licenses, tariffs, and all transactions, use, privilege, occupation, excise, value added or other taxes, federal, state, local or foreign, which SMI is required to pay or collect in connection with the Goods contracted for under this Agreement. Failure by the SMI to collect any such fees or taxes shall not affect Customer’s obligations hereunder and Customer shall fully defend, indemnify and hold harmless SMI with respect to such tax obligations.

16. Ownership of Intellectual Property. All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights, trademarks, patents, etc. and applications therefore, and other information or Intellectual Property disclosed or otherwise provided to Customer by SMI and all rights therein (collectively, “Intellectual Property”) will remain the property of SMI and will be kept confidential by Customer in accordance with these Terms and Conditions. Customer shall have no claim to, nor ownership interest in, any Intellectual Property and such information, in whatever form and any copies thereof, shall be promptly returned to SMI upon written request from SMI. Customer acknowledges that no license or rights of any sort are granted to Customer hereunder in respect of any Intellectual Property, other than the limited right to use SMI’s proprietary Goods purchased from SMI. Unless otherwise agreed in a writing signed by an Authorized Representative of SMI, the sale of Goods by SMI to Customer does not include any design, development or related services associated with the Intellectual Property of the SMI. Unless otherwise agreed to in a writing signed by an Authorized Representative of SMI any Intellectual Property developed by it or mutually with Customer in the course of providing, preparing to provide, or in any way related to the production/development of Goods shall be owned by SMI.

17. Confidential Information. Information furnished or made available by SMI (including, but not limited to, information disclosed prior to the applicability of these Terms and Conditions) to Customer in connection with the subject matter of these Terms and Conditions or of Customer’s Purchase Order shall be held in confidence by the Customer. Customer agrees not to use or disclose such information without the prior written consent of an Authorized Representative of SMI. The obligations in this Section 17 do not apply to information that (a) at the time of disclosure was or becomes, generally available to the public by no breach by the Customer of any obligation herein, (b) the Customer can show by written records was in its possession prior to disclosure by SMI, or (c) is legally disclosed to Customer by a third party having no direct or indirect confidentiality obligation to SMI respecting such information.

18. Updates. SMI may revise these Terms and Conditions at any time by posting them to their website.

19. Force Majeure. SMI shall not be liable for failure in delivery of any Goods due to (a) fires, floods, other natural disaster, strikes, or other labor disputes, accidents, sabotage, terrorism, war, riots, financial distress of a supplier or other disruption in SMI’s supply chain, acts of precedence or priorities granted at the request or for the benefit, directly or indirectly, of any federal, state or local government or any subdivision or agency thereof, delays in transportation or lack of transportation facilities, restrictions imposed by federal, state or local laws, rules or regulations; or (b) any other cause beyond the reasonable control of SMI. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be useful to enable SMI to perform. SMI may, during any period of shortage due to any of the above circumstances, allocate its available supply of resources to provide Goods among itself and its Customers in such manner as SMI, in its judgment, deems fair and equitable.

20. Assignment and Delegation. No assignment of any rights or interest or delegation of any obligation/duty of Customer under these Terms and Conditions, SMI’s Quotation, order acknowledgement, invoice, or Customer’s Purchase Order may be made without prior written consent of SMI’s Authorized Representative. Any attempted assignment or delegation will be wholly void and totally ineffective for all purposes.

21. Integration Clause. Except as otherwise indicated herein, these Terms and Conditions constitute the entire Terms and Conditions to transactions between SMI and Customer with respect to the Goods.

22. Waiver. No failure of SMI to insist upon strict compliance by Customer with these Terms and Conditions or to exercise any right accruing from any breach of Customer shall impair SMI’s rights in case Customer’s breach continues or in case of any subsequent breach by Customer. Waiver by SMI of any breach by Customer of these Terms and Conditions shall not be construed as a waiver of any other existing or future breach.

23. Limitation of Actions. Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of these Terms and Conditions by SMI shall be barred unless commenced by Customer within one (1) year from the accrual of such cause or action.

24. Dispute Costs. In any litigation or arbitration between SMI and Customer concerning these Terms and Conditions, the prevailing party is entitled, in addition to such other relief that is granted, to a reasonable sum for their attorney’s fees, provided that if each party prevails in part, such fees shall be allocated in such manner as the court or arbitrator shall determine.

25. Choice of Laws. Any dispute arising out of or related to these Terms and Conditions shall be governed by and construed according to the laws of the State of Utah and litigated exclusively in a court located in Davis County, Utah (to the extent that a matter may only be litigated in a federal court the parties agree that venue for such dispute shall be the Federal Court for the 2nd Judicial District Court of Utah). The parties hereby agree to the exclusive jurisdiction and venue of such courts. These Terms and Conditions and the rights and obligations of the respective parties hereunder shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

26. JURY WAIVER. THE PARTIES HERETO EXPRESSLY RELEASE AND WAIVE ANY AND ALL RIGHTS TO A JURY TRIAL AND CONSENT TO HAVE ANY DISPUTE HEARD SOLELY BY THE COURT OF COMPETENT JURISDICTION SET FORTH IN SECTION 25.

27. Severability. The parties intended that these Terms and Conditions are severable. If any provision herein is or is deemed to be unlawful or unenforceable then the remaining provisions shall remain in full force and effect.

28. Survival. Any provision of these Terms and Conditions, which by its nature extends beyond the expiration, termination, or cancellation of these Terms and Conditions, shall remain in full force and effect.