Terms of Sale

"Buyer" means the individual, firm, partnership, corporation or entity to whom these Terms and Conditions are addressed. "Seller" means Monmet Ltée/Ltd. "Terms and Conditions" means this written document. "Products" means any and all goods and services subject to these Terms and Conditions and described on the quotation included with this document.

Acceptance of the offer represented by the attached quotation is expressly limited to the terms hereof. Any additional or different terms in any document furnished by the Buyer are hereby objected to and rejected. All acceptances are subject to acknowledgment in writing by Seller. The quotation, Buyer's written acceptance, and these Terms and Conditions of Sale constitute the entire agreement between the parties. No changes herein shall be binding on Seller unless made in writing and signed by an authorized representative of Seller.

Seller warrants that the Products conform substantially to the specifications. For a period of one hundred and eighty (180) days from original delivery FCA (Incoterms 2010), Seller warrants that the Products will be free from material defects in materials and workmanship.

THE FOREGOING WARRANTIES ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, ORAL OR WRITTEN, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND OF ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF SELLER. SELLER MAKES NO WARRANTY WHATSOEVER IN RESPECT TO PRODUCTS, ACCESSORIES OR PARTS NOT SUPPLIED BY SELLER.

Buyer's remedy for breach of any of Seller's warranties shall be limited to (a) the replacement or repair by Seller of defects in the Products or (b) the reimbursement of the price paid by Buyer. The determination of which remedy applies is at Seller's sole discretion.

THE ABOVE STATED REMEDIES ARE SELLER'S ENTIRE AND EXCLUSIVE LIABILITIES AND BUYER'S EXCLUSIVE REMEDIES. In no event may Buyer revoke or reject acceptance of the Products or claim equitable adjustment to the purchase price. Seller shall not be liable for any direct, indirect, special, or consequential damages, loss of use, or delay. Seller's liability shall in no circumstances exceed the contract price for the Products.

All claims for breach of warranty shall be barred unless Buyer notifies Seller in writing within 30 days of discovery. Any claim must be brought no later than one (1) year after accrual or it shall be deemed waived. Claims for errors in weight or quantity shall be made within 10 days after delivery.

5.1 The prices set forth in Seller's quotation are valid for thirty (30) days unless otherwise specified. Where purchase orders are provided without a specific quotation, prices shall be those in effect at the time of receipt of the order. Seller reserves the right to add surcharges if the quotation so provides.

5.2 Buyer shall indemnify and hold Seller harmless from any loss, claim or damage suffered by Seller as a result of Buyer's failure to pay sums due to Seller.

In addition to any price specified, Buyer shall be responsible for and pay (a) all customs duties and taxes on the sale, delivery, storage, consumption or transportation of the Products, including sales, use, excise or similar taxes, and (b) all costs and fees for shipping and transportation, including freight charges and packing and crating costs.

7.1 All Products shall be delivered Ex-Works (Incoterms 2010) Seller's facility. All deliveries shall be made freight collect. Unless a specific carrier is agreed in writing, Seller will use reasonable judgment in selection. Buyer bears all risk of loss after delivery.

7.2 Prices quoted are for Products shipped loose by truck or rail. Special packing is available for an additional charge at Buyer's request.

7.3 Delivery schedules acknowledged by Seller are conditioned upon receipt of all materials, tools, dies, patterns and fixtures furnished by Buyer or any outside source in reasonable time.

If Buyer has obtained written credit approval from Seller, payment for the Products is due 30 calendar days net upon invoicing unless otherwise agreed in writing. If no written credit approval has been granted, payment is due immediately upon shipment. Payment shall not be conditioned on anything other than delivery and shall not be subject to any offset by Buyer. If payment is not made when due, Buyer shall pay a finance charge equal to the lesser of 1.5% per month or the maximum interest rate allowable under law.

Seller shall not be liable for delay in or prevention of its performance due to causes beyond its reasonable control, including acts of God, fires, floods, strikes or other labor disputes, labor, material or transportation shortages, acts of sovereign governments, terrorism, war or other similar occurrences. Seller shall notify Buyer in writing within ten (10) days of the beginning of any such cause.

After acknowledgment by Seller, Buyer's orders may not be changed or cancelled without Seller's written consent. Changes require written agreement on equitable adjustments to price and delivery. Orders cancelled prior to scheduled delivery require Buyer to pay for all work performed (including overhead and margin) up to the point of cancellation. If cancellation is within two (2) months of the scheduled delivery date, Buyer shall pay a reasonable cancellation fee.

Partial shipments are permitted and Seller may invoice each shipment separately. Shipments and deliveries are subject to approval by Seller's Credit Department and offered credit terms. Where Seller reasonably refuses to ship on open credit, Seller may decline to deliver except on receipt of cash in advance or other satisfactory security. If Buyer fails to meet the payment terms, Seller may cancel the order, and Buyer shall immediately pay Seller's reasonable cancellation charges.

It shall be deemed a default hereunder, and Seller may terminate any previously accepted purchase order, upon: (a) Buyer's failure to comply with any of the covenants or conditions herein; (b) the filing of a bankruptcy petition by or against Buyer, the appointment of a receiver or trustee, the filing of a reorganization petition, a voluntary appointment of an administrator, an assignment for the benefit of creditors, or a declaration of insolvency by a court of competent jurisdiction; or (c) a material change in Buyer's financial condition, or Seller's belief that the prospect of payment or performance is impaired.

Seller shall provide written notice of such termination in the case of (a) and (c) above, and termination shall be immediate in the case of (b). Buyer shall pay the full agreed price for the Products immediately upon such termination, less direct costs and expenses saved by Seller as a result. These rights are in addition to all other rights and remedies of Seller hereunder or at law or in equity.

Products shall be entirely at Buyer's risk (including loss or damage) from the moment of shipment from Seller's facility (the carrier of the Goods shall be deemed Buyer's agent even if engaged or paid by Seller).

14.1 All patterns, core boxes and tooling ("Patterns and Tooling") required to manufacture the Products shall be furnished by Buyer or paid for by Buyer as set forth in this Article 14.

14.2 Seller shall have no responsibility or liability for any non-conformity of Patterns and Tooling, drawings or specifications for the Products supplied by Buyer.

14.3 Buyer warrants that any Patterns and Tooling furnished by Buyer shall conform to Seller's requirements relating to Buyer's Patterns and Tooling.

14.4 Buyer acknowledges that Seller will not insure Buyer's Patterns and Tooling in Seller's possession, and that Seller shall have no liability (whether in contract, tort (including negligence) or otherwise) to Buyer for or in connection with any loss or damage to Buyer's Patterns and Tooling or other materials in Seller's possession.

14.5 In addition to the price payable for the Products and Patterns and Tooling, Buyer agrees to pay Seller all costs incurred by Seller in connection with modification, maintenance, shipment, crating and storage of Buyer's Patterns and Tooling.

14.6 Seller may, upon sixty (60) days' written notice to Buyer, scrap any Patterns and Tooling in its possession and retain any proceeds, if such Patterns and Tooling have not been used for two (2) years or more, unless Buyer objects in writing within such 60-day period.

Buyer shall indemnify, defend and hold harmless Seller and its affiliates, officers, directors, owners, members, employees and agents from any loss, claim or damage suffered by Seller as a result of Buyer's negligence or willful misconduct with respect to the Products, Patterns or Tooling.

16.1 Where Products are made to designs, plans, processes or specifications furnished by Buyer or by a third party at Buyer's direction, Buyer shall indemnify Seller against all claims and damages for infringement of any patents or intellectual property in the design or process of such Products.

16.2 If performance includes experimental design, development or research work, whether or not paid for in whole or in part by Buyer, Seller shall retain exclusive title to all discoveries, technical data and computer software (Seller's Intellectual Property) resulting from such work, including confidential designs, processes, know-how, trade secrets and inventions, whether or not patentable.

Any drawings, data, designs or other technical information that Buyer discloses to Seller in regard to the design, manufacture or sale of articles hereunder shall be deemed disclosed on a voluntary basis, and Buyer shall not assert any claim against Seller by reason of Seller's use thereof.

Buyer agrees that it will not assign this Agreement in whole or in part without Seller's prior written consent, which may be withheld for any reason. Upon prior written notice to Buyer, Seller may assign its rights and responsibilities to any qualified third party (as determined by Seller).

In any arbitration, suit or action brought to enforce or interpret these Terms and Conditions of Sale, or in any appeal or bankruptcy action, the non-prevailing party shall pay the reasonable attorney's fees and/or collection costs of the prevailing party.

This Agreement is binding upon the successors and assigns of Seller and Buyer and is governed by the laws of the State or Province in which the Seller issued the quotation or accepted the purchase order. In the event of litigation or arbitration, venue shall be the District Court of that State or Province.

These Terms and Conditions of Sale shall survive the cancellation, termination and satisfaction of this Agreement.

Except as otherwise waived in writing by Seller, Buyer shall keep confidential all of the terms set forth in this Agreement and all of Seller's Intellectual Property provided to Buyer in connection with the manufacture, sale or delivery of the Products.

Buyer grants to Seller a first ranking purchase-money security interest in all materials and equipment held by Seller, including the Products, Work and all pattern equipment and patterns. This security secures payment and performance of all indebtedness and obligations of Buyer to Seller. Upon any default, Seller may exercise all rights and remedies of a secured party under governing law. Buyer authorizes Seller to file financing statements and other documents necessary to perfect its security interest without further approval.