New Tech Metals

A division of Blackman, Inc. Terms and Conditions of Sale

1)             ACCEPTANCE. The proposal embodied by this document and any writings incorporated by reference (collectively, the “Agreement”) may be accepted by any definite and seasonable expression of acceptance. Acceptance is limited to the terms and conditions of the Agreement; no additional or different terms or conditions contained in any acceptance shall become part of the contract formed as a result of such acceptance. This Agreement may not be modified except by written agreement signed by a duly authorized representative of Seller. Any provisions of Buyer’s purchase order or other document, which is inconsistent with the foregoing, shall be of no force and effect.

2)             FORCE MAJEURE. Seller shall not be liable for any failure of any performance under this Agreement if such failure is occasioned by war, labor shortage, materials shortage, fire, flood or by any act of God, or by any other cause beyond the control of Seller. Time is not of the essence with respect to Seller’s performance hereunder.

3)             PAYMENT AND TERMS. The sales price shall be as stated on the front side of this proposal. The services to be provided by Seller are limited to those specifically delineated on the front side of this proposal. Payment is due upon receipt of invoice, time being of the essence.   Accounts past due shall be charged a late fee at a rate of 1.5% per month (or 1.0% per month if a “consumer transaction” as defined under applicable law), or the maximum amount permitted by law, from the date of invoice. To the extent permitted by applicable law, Buyer shall be liable to Seller for all costs of collection, including but not limited to actual reasonable attorney fees, incurred by Seller in connection with actions or efforts to collect any balance owed by Buyer.

4)             LIMITATION OF WARRANTY. Seller shall not be liable to Buyer or anyone claiming by, through, or under Buyer for any error of judgment or mistake of law or for any loss, except a loss resulting from willful malfeasance, bad faith or gross negligence on the part of Seller. SELLER MAKES NO ADDITIONAL WARRANTIES WITH RESPECT TO THE PRODUCTS OR SERVICES SOLD HEREUNDER. ANY IMPLIED WARRANTY OF MERCHANTABILITY, AND ANY IMPLIED WARRANTY THAT THE GOODS OR SERVICES ARE FIT FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED.

5)             LIMITATION OF LIABILITY. Notwithstanding any other provision, the total liability, in the aggregate, of Seller and Seller’s officers, directors, employees, and agents to Buyer for any and all claims, losses, costs or damages whatsoever arising out of, resulting from or in any way related to the goods or services provided by Seller shall not exceed the amounts actually received by Seller from Buyer. Notwithstanding any other provision, Seller and Seller’s officers, directors, employees, and agents shall not be liable to Buyer for any special, incidental, indirect or consequential damages whatsoever.

6)             OWNERSHIP OF DESIGN. Design documents created by Seller, including, but not limited to, sketches, compilations, designs, illustrations, photography, models, and all other design elements, regardless of form or format (collectively, the “Design Documents”) are the exclusive property of Seller. Upon full payment of all fees and costs, Buyer shall be granted the rights, if any, to use the Design Documents as specified on the front side of this Agreement.

7)               INDEMNIFICATION OF DESIGN. Buyer warrants that Buyer is the owner of or duly authorized to use any and all copy, cuts, writings, illustrations, trademarks, service marks and trade names submitted or approved by Buyer. Buyer hereby indemnifies and holds Seller harmless from any and all claims for damages sustained by Seller, Buyer or any third party based on infringement of the property rights of others.

8)             PRODUCT LIABILITY PROTECTION. Buyer shall indemnify, defend and hold Seller harmless from and against any loss, liability, damage, and expense (including attorney fees) which in any manner may arise or result from, or be alleged to have arisen or resulted from, Buyer’s or any third party’s use or misuse of the product sold hereunder. Seller, at its option, shall have the sole authority for the.directing the defense of any such claim, shall have the right to employ attorneys of its own selection (at the expense of Buyer), and shall be the sole judge of the acceptability of any settlement of any such claim. Buyer shall be solely responsible for compliance with any federal, state, or local law regulating the design or operation of the product. Buyer shall not modify the product in any manner, and any modification shall be deemed a material change to the product.

9)             EXCLUSIVE REMEDY. Buyer’s sole and exclusive remedy for breach of any warranty hereunder shall be the repair or replacement of any defective goods or services, at Seller’s expense. Seller shall have no liability under the foregoing warranty unless Buyer, at its expense, has provided Seller a clear written statement describing the alleged defect, its consequences and, if applicable, returned the allegedly defective product to Suppller.

10)          GOVERNING LAW: JURISDICTION. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of Wisconsin, exclusive of Wisconsin’s conflict of laws provisions. Any and all claims, questions or disputes regarding the interpretation performance and enforceability of this Agreement, the rights and remedies of the parties hereunder, and all related actions of counterclaims shall be initiated and or prosecuted exclusively in Outagamie County Circuit Court, Appleton, Wisconsin. The parties further agree to submit to the jurisdiction of said courts.

11)          ENTIRE AGREEMENT. This Agreement is the entire agreement between the parties with respect to the transaction contemplated herein and supersedes all previous written or oral negotiations, commitments and writings. No promises, agreements, representations or warranties with respect to said transaction have been made by any of the parties except as set forth herein.

12)          BINDING EFFECT. This Agreement shall bind and benefit the parties and their respective personal and legal representatives, heirs, successors and permitted assigns.

13)          AUTHORITY. Each party warrants to the other party that is has the authority to enter into this Agreement and that all necessary corporate or other approvals have been or will be obtained.

14)          INDEPENDENT CONTRACTOR. Each party acknowledges that it is an independent contractor and is neither an agent, partner, joint venturer nor employee of the other party. A party shall have no authority to bind or otherwise obligate the other party in any manner nor shall a party represent to anyone that it has a right to do so.

15)          WAIVER. The failure of either party to insist on strict performance of this Agreement by the other, according to the terms and understanding herein set forth, shall not be construed as a waiver of the right to insist on such performance and no waiver by either party of any breach by the other of any provisions hereof shall be deemed a waiver of any other prior or subsequent breach.

16)          SEVERABILITY. Each provision of this Agreement shall be considered severable, and if for any reason any provision or provisions of this Agreement are determined to be invalid and contrary to any existing or future law, the invalidity shall not affect or impair the operation of those portions of this Agreement that are valid, or the application of such provisions in situations in which they are not invalid.