Terms & Conditions of Sale

The following terms and conditions shall be incorporated into each accepted order or contract between the buyer indicated in the order or contract (“Buyer”) and Secon Rubber and Plastics, Inc. (“Seller”) for any items sold by Seller (“Product”).

1. EXCLUSIVE TERMS AND CONDITIONS.

This document constitutes the complete and final agreement between Seller and Buyer with respect to the Product. This document shall not be amended, modified, or superseded, whether by course of dealing or usage of trade, practice, or otherwise, except by a writing that is signed by an authorized officer of Seller, regardless of any other terms and/or conditions that may appear on Buyer’s documents. All such Buyer documents are hereby expressly objected to and rejected by Seller without further notice to Buyer. This document is expressly conditioned upon Buyer’s agreement to all the terms and conditions contained herein.

2. ORDER ACCEPTANCE.

The issuance by Buyer of a purchase order predicated upon this proposal shall not constitute a binding contract unless and until it is accepted by Seller at its plant. Any terms or conditions of Buyer’s purchase order or similar instruments, which are in addition to or inconsistent with Seller’s terms and conditions stated herein, shall not be binding on Seller and shall not apply to this transaction unless specifically agreed to in writing by Seller’s authorized officer. Seller’s failure to object to provisions contained in Buyer’s order or other communication shall not be deemed a waiver of Seller’s Terms and Conditions. Buyer’s acceptance of any performance by Seller shall be deemed as Buyer’s acceptance of all the terms and conditions provided by this document.

3. PRICING.

All quotations, unless otherwise stated, are for immediate action and all prices quoted therein are subject to change without notice any time prior to Seller’s acceptance of Buyer’s order. All Product will be billed at Seller’s prices in effect at time of shipment. Previous quotations for the Product or services described hereon are hereby canceled. Prices quoted do not include any city, state, or federal taxes which may be applicable. Such taxes will be paid by Buyer.

4. DELIVERY F.O.B.

Unless otherwise specified in writing, delivery of Product will be made F.O.B Seller’s facility. All Product becomes Buyer’s property and responsibility when delivered to a common carrier or any such delivery service as Buyer may specify, at the F.O.B. point. Seller will make every effort to make shipment in accordance with the delivery schedule submitted, but such delivery is not guaranteed. Seller shall not be liable for any penalty or damages for delay in the production or delivery of the materials covered hereby. If any condition or cause whatsoever beyond the reasonable control of Seller prevents compliance with such schedule, in the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of such delay. Seller accepts no risk of loss or damage to Buyer’s Product by deterioration or by fire, smoke, explosion, sprinkler leakage, windstorm, flood, hail, aircraft, riot, civil commotion, labor trouble, or any other casualty while in transit, in Buyer’s possession or under Buyer’s control.

5. LIMITED WARRANTY.

a. All statements, technical information, and recommendations concerning the Product sold or samples provided by Seller are based upon tests believed to be reliable but do not constitute a guarantee or warranty. Suggestions as to design use and suitability made by Seller are submitted in good faith; however, Buyer must and shall assume responsibility for accepting and using such suggestions. All Product is sold and samples of Product are provided with the understanding that Buyer has independently determined the suitability of such Product for its purposes. Seller warrants, as limited below, that Product shall conform in material respects to the specifications provided by Seller, if any. Unless dimensions are limited by a specific tolerance, it is understood that the production variations as published by the Seller will be acceptable. General title block tolerances on blueprints shall not apply unless agreed to in writing by the Seller.

b. Should the Product fail to conform in material respects to the specifications provided by the Seller, if any, and such defects appear within thirty (30) days in the time period stated on the specific Product specifications sheet, or quotation, if any, after the initial date of shipment, Seller shall, upon written notification thereof and substantiation that the Product has been stored and applied in accordance with Seller’s standards, correct such defects by suitable rework or replacement without charge at Seller’s plant or at the location of the Product, at Seller’s election, provided, however, if Seller determines that rework or replacement is not commercially practical, it shall issue a credit in favor of Buyer in an amount not to exceed the purchase price of the Product. This remedy shall not be deemed to have failed of its essential purpose so long as Seller is willing to rework or replace any of its defective Product. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SELLER EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

c. The warranty provided by Seller to Buyer hereunder shall cease to be valid immediately upon the occurrence of the following:

i. Buyer has not fully complied with Seller’s instructions regarding use, installation and/or maintenance, in which case Buyer must prove that said instructions have been observed by Buyer;

ii. Buyer has made any changes to the Product purchased from Seller in which the defect has been discovered without having obtained Seller’s consent;

iii. Buyer has not offered Seller the opportunity to do everything which would be necessary or desirable to repair the defect concerned.

6. BUYER SUPPLIED MATERIAL.

It is recognized that even after utilizing all the skills and information available to the Seller, risks still remain in converting. Therefore, Seller liability shall not exceed the amount charged by Seller for services performed on Buyer supplied material, except by written agreement signed by Seller. The Buyer, by contracting for services with Seller, agrees to accept the limits of liability as expressed in the statement to the exclusion of any and all other provisions as to liability; including the Buyer’s own invoices, purchase orders or other documents. If the Buyer desires their own provisions as to liability to remain in force and effect, this must be agreed to in writing, signed by an officer of the Seller. In such event, a different charge for services, reflecting the higher risk to Seller, shall be determined by Seller and Buyer.

7. LIMITATION OF LIABILITY.

In no event shall Seller be liable for any incidental or consequential or other damages including but not limited to loss of profit, loss of use or production or loss of capital. The remedies of Buyer set forth above are exclusive, and the total liability of Seller with respect to any contract, or anything done in connection therewith, whether arising out of contract, negligence, strict tort of any warranty or otherwise, shall not exceed purchase price of the Product upon which liability is based. In addition, Buyer shall indemnity and hold Seller harmless against any and all debts, obligations, costs and damages including attorney’s fees, arising from any claims or cause of action, whether in law or equity or otherwise, which may be asserted against Seller resulting from Buyer’s use and subsequent sale of Product.

8. PATENTS.

Buyer will indemnify, defend and hold Seller harmless from any and all expense or loss from any claim for damages, or liability, arising out of actual or alleged infringement of patents or trademarks resulting from compliance with Buyer’s design, specifications or instruction.

9. QUANTITY.

All quotations are based on production and prompt delivery of stated quantity at one time and Buyer accepting over-run or under-run on each individual item not exceeding 10% of quantities ordered unless otherwise agreed in writing. This quotation applies to the quantities shown only. Additional quantities and/or sizes will be quoted upon request.

10. PARTIAL TOOL CHARGES.

Any charges for special tools, dies or fixtures which are necessary for the completion of orders are partial and do not cover the full costs of Seller for such tools, dies or fixtures. Such tools, dies or fixtures remain the property of Seller. Buyer shall pay for the cost of special tooling when Seller has submitted sample Product made to the Buyer’s specification or has completed a shipment of Product in lieu of samples. Tools can become property of buyer only by written agreement and after the Buyer pays full tool charges.

11. CHANGES AND CANCELATION.

Orders accepted by Seller are not subject to changes or cancelation by Buyer, except with Seller’s written consent. If a change or cancelation is so made it is agreed that all finished Product be taken at full contract price, that Product in process be paid for at cost plus pro rata profit, and that Seller be reimbursed for materials purchased in anticipation of their use in Product.

12. CANCELATION REIMBURSEMENT.

If Buyer cancels a purchase order after Seller accepts same, and after Seller has purchased goods and/or services and/or has entered into a binding and non-cancelable contract for the supply of goods and/or services for the purpose of fulfilling the purchase order, Buyer shall reimburse Seller for the lesser of: (i) the cost of any such goods and/or services procured by Seller, or (ii) the cost to cancel any contract for the supply of goods and/or services entered into by Seller for the sole purpose of fulfilling the purchase order.

13. INSPECTION.

Buyer shall notify Seller in writing of any default in Product or claim reasonably discoverable upon inspection of Product within thirty (30) days after Buyer’s receipt of Product, or Buyer shall deemed to have accepted such Product and any claims arising therefrom shall be waived. All claims for errors or shortages must be made within ten (10) days of Buyer’s receipt of Product.

14. GOVERNING LAW.

These Terms and Conditions shall be deemed to be made under and shall be governed by the laws of the State of Illinois. Venue and jurisdiction for any disputes arising hereunder shall be in Randolph County, Illinois.

15. DEFAULT.

In the event of default under any Buyer order, Seller may immediately terminate its performance required by any and all purchase orders outstanding between Buyer and Seller without notice to Buyer. All late payments shall be charged interest at the rate of 1.5% per month on the unpaid balance or the maximum amount allowed by law, whichever is less. Buyer shall immediately notify Seller of the occurrence or expected occurrence of any of the events of default listed below. Buyer shall be liable for all costs including reasonable attorney’s fees incurred by the Seller in collecting delinquent accounts.

The following shall be considered events of default:

(a) If payment is not received by its due date

(b) If an application for suspension of payments or for protection under the US Bankruptcy Code is filed or granted on behalf of Buyer.

(c) If Buyer loses full or partial control of its assets;

(d) If Buyer’s company is dissolved or if its business is discontinued in whole or in part; or

(e) If Buyer fails to comply in full or in part with any obligations owed to Seller.

16. FORCE MAJEURE.

Seller shall not be liable for any failure to perform by reason of strikes, riots, insurrections, fires, floods, unavoidable accidents, wars, terrorism, delay in transportation, acts of God or any other causes beyond its reasonable control. In connection with the foregoing, Buyer acknowledges that delivery of the Goods is contingent upon Seller’s ability to obtain supplies, raw materials, production capacity and other goods and/or services through its regular and usual sources and, thus, if for any reason beyond Seller’s reasonable control, Seller is not able to meet anticipated delivery date(s) or any other performance, Buyer acknowledges that Seller shall not be liable therefor and Seller may postpone the delivery date(s) under this Document for such period of time which is reasonable in the judgment of Seller under the circumstances.

17. GENERAL.

a. Seller will comply with all applicable Federal, State, and local laws with respect to labor conditions, work opportunities and specifically represents that any Product to be delivered will be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended. This proposal constitutes Seller’s entire quotation covering Buyer’s requirements. There are no agreements not included in the above.

b. The failure of a party to require performance of any provision of any purchase order or contract between the parties will not affect its right to enforce such provision in the future. No waiver by a party or any provisions of these Terms and Conditions will be effective unless such waiver is in writing, and no waiver in any one or more instances will be deemed to be a further or continuing waiver of any such condition, breach, term, condition, or covenant.

c. If a court of competent jurisdiction finds that any of the provisions hereof are in conflict with any applicable statutory provision, the remaining provisions shall nonetheless remain in full force effect. The invalid provisions shall in that case be deemed to have been replaced by a similar, legally enforceable provision which approximates the purpose and intent of the invalid provisions as closely as possible.

d. In the event it is necessary for either party to file a lawsuit to enforce or defend any of the provisions of these Terms and Conditions or of a purchase order or other agreement between the parties relative to an order, the party that prevails in court with respect to such lawsuit shall be entitled to recover from the other party its reasonable attorney’s fees and costs related to such lawsuit.