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Terms and Conditions of Sale


This agreement (the “Agreement”) is between  American Industrial Plastics, LLC (“AIP”) and  Purchaser. No order for AIP’s goods or services  shall be binding upon AIP until acknowledged in  writing by AIP. Such written acknowledgement and  these Standard Terms and Conditions of Sale (the  “Terms and Conditions”) constitute the entire  agreement between AIP and Purchaser. Any  purchase order, offer or counter-offer made by  Purchaser before or after AIP’s written  acknowledgement is rejected and all documents  exchanged prior to AIP’s written acknowledgement  are merely preliminary negotiations and not part of  any agreement between the parties. For example,  orders submitted on Purchaser’s own purchase order  forms modifying, adding to, contrary to, or  inconsistent with these Terms and Conditions are  expressly rejected and of no force or effect and  acceptance is expressly made conditional upon  assent to these terms. In no event will AIP be  deemed to have in any way changed, enlarged or  modified its liabilities or obligations as fixed by  these Terms and Conditions including, without  limitation, situations in which AIP satisfies an order  submitted on Purchaser’s own purchase order form. Purchaser shall have been deemed to agree to these  Terms and Conditions upon the earlier of  acceptance of AIP’s quotation, acceptance of  delivery of the goods or performance of services or  the issuance of a purchase order to AIP. No acknowledgement by AIP and no provision of  AIP’s Terms and Conditions shall be subject to  change in any manner except as agreed to in writing  by an officer of AIP. 


Until acceptance of a purchase order is  acknowledged in writing by AIP, all prices are  subject to change. Written quotations expire  fourteen (14) calendar days from the date of  quotation unless specified otherwise. Verbal  quotations are non-binding on AIP. Quoted prices  do not include sales, excise, municipal, state or any  other government taxes. All taxes and other  governmental charges upon the production,  manufacture, distribution, sale or use of goods or  performance of services to the extent required or not  forbidden by law to be collected by AIP from  Purchaser, shall be paid by Purchaser to AIP unless  Purchaser furnishes AIP with exemption certificates  acceptable to the relevant taxing authorities. AIP reserves the right to revise final quoted prices of  work in process due to any change in the order on  the part of the Purchaser or any factor beyond the  control of AIP. Typographical and/or clerical errors made by AIP are subject to correction.  


Invoices are net thirty (30) days from the date of  invoice unless specified otherwise and approved in  writing by AIP. In the event that the purchase order  between Purchaser and AIP requires partial  payments to be made by Purchaser, Purchaser shall  pay those required amounts in a timely manner or  AIP will be permitted to suspend, without penalty  or liability of any kind, delivery of future goods or  performance of services to the Purchaser. Past due  accounts will bear interest at the rate of 3% per  month of the invoiced amount. All invoices are  payable in U.S. dollars, unless specified otherwise  and approved by AIP in writing. Acceptance of  bank drafts, checks or other form of payment shall  be subject to immediate collection of the full face  amount thereof. AIP may, at its discretion, impose a  transaction fee on payments processed via wire  transfer or by Letter of Credit. AIP reserves the right at any time to suspend credit  or to change credit terms provided herein when in  its sole opinion the financial condition of Purchaser so warrants. In such case, in addition to any other  remedies provided herein or by law, AIP may  request cash payment or satisfactory security from  Purchaser prior to shipment of goods or  performance of services. In the event of nonpayment of an invoice when due,  and without prejudice to other lawful remedies, AIP shall have the right to suspend further work or the  delivery of future goods under this Agreement or  any other agreement with Purchaser until such  invoice is paid in full; provided, however, that if  such invoice remains unpaid for more than five (5)  days after written demand by AIP, AIP may  terminate this Agreement without penalty. 


SLK_TOL: #1981483v1 2 AIP shall not be liable for any damage as a result of  any non-delivery or delay due to any cause beyond  AIP’s reasonable control, including, without  limitation, an act of God; act of Purchaser;  embargo; other government act, regulation or  request; fire; accident; strike; war; boycott;  slowdown; riot; or delay in transportation or  inability to obtain necessary labor, materials, or  manufacturing facilities. If delivery is delayed or deferred by Purchaser  beyond the scheduled date, payment shall be due in  full when AIP is prepared to ship the goods or  perform the services. The goods may thereafter, at  AIP’s option, be stored at the risk and expense of  Purchaser. AIP may at certain times provide goods to  Purchaser prior to the issuance, delivery and  acceptance of a corresponding purchase order. In  such cases, AIP will notify Purchaser that these  Terms and Conditions shall apply to such  transactions and Purchaser shall be deemed to have  accepted such Terms and Conditions upon AIP’s  delivery of goods. 


Unless otherwise noted, all sales of goods are made  FOB point of shipment. AIP will use commercially  reasonable efforts to meet delivery dates stated in  advance of actual shipment of goods or  performance of services, but in no event shall such  quoted delivery dates be deemed to represent fixed  or guaranteed delivery dates. Claims for shortage or  other quantity errors must be made in writing to  AIP within five (5) days after receipt of shipment. Failure to give such notice shall constitute  unqualified acceptance and a waiver of all such  claims by Purchaser. AIP, in its sole discretion, may accommodate Purchaser requests for delivery of goods in  installments if such requests are confirmed in  writing by AIP. Such installment deliveries, when  separately invoiced, shall be paid for when due per  invoice without regard to subsequent deliveries. Delay in delivery of any installment shall not  relieve Purchaser of its obligations to accept  remaining deliveries. 


All tools, patterns and other equipment used in the  manufacture of any of AIP’s goods or performance  of any of AIP’s services shall remain the property  of AIP unless otherwise expressly agreed upon in writing. Purchaser shall not permit any third party  to use such equipment nor disclose to any third  party any technical, dimensional or design details,  or any other information in respect of such  equipment at any time. 


Purchaser acknowledges that it has selected and  ordered goods based on its own skill and judgment  and agrees that it is responsible for ensuring that the  goods selected are fit for Purchaser’s purpose. AIP warrants only that such goods have been produced  in accord with AIP’s standard practices with regard  to materials and workmanship and no samples or  prior description of goods shall constitute an  express warranty. If goods are non-conforming,  AIP, at its option and subject to the terms of this  paragraph 7 and paragraph 9, will either (i) allow  Purchaser to return the goods and receive  repayment of the price or (ii) repair or replace the  goods. No goods are to be returned to AIP without  prior written consent of AIP and the assignment of a  return goods authorization number by AIP. Purchaser is liable to pay for all associated costs  incurred by AIP due to Purchaser’s selection of  noncompliant or defective designs and materials. These associated costs are calculated based on any  additional costs incurred by AIP in managing the  noncompliant or defective products, including, but  not limited to, all reworks, investigations and other  consequential costs. AIP shall not be responsible for any selection made  by Purchaser and will not have any liability to  Purchaser for any loss, damages, costs or expenses  suffered by Purchaser as a result thereof. (a) THIS WARRANTY IS IN LIEU OF ANY  EXPRESSED OR IMPLIED WARRANTIES,  INCLUDING ANY IMPLIED WARRANTY OF  MERCHANTABILITY OR FITNESS FOR A  PARTICULAR PURPOSE AND ANY OTHER  OBLIGATION ON THE PART OF THE SELLER.SLK_TOL: #1981483v1 3 (b) AIP shall have no obligation under this warranty  if damage to the goods occurs because of  Purchaser’s failure to comply with AIP’s written  storage procedures for the goods or improper handling or operation, modification of the goods,  abuse, misuse, unauthorized repairs made or  attempted and/or where equipment is operated  above rated capacity. (c) No agent, employee or representative of AIP has  authority to bind AIP to any affirmation,  representation or warranty concerning the goods  sold. (d) Upon receipt, Purchaser shall inspect the goods. All notice of claims, including claims for alleged  defective goods, must be made within (i) thirty (30)  days of receipt of such goods; or (ii) prior to the  installation of such goods into any other products,  whichever period is shorter. If no notice of claim is  made within such inspection period, the goods are  irrevocably accepted by Purchaser and all claims  against AIP are waived and forever barred. Purchaser agrees that any litigation or arbitration  relating to any claim must be commenced within  one (1) year after date of shipment by AIP. Purchaser hereby expressly assumes all liability for  all damage and injury occurring before and after  said time periods if notice is not made pursuant to  this Agreement. 


Purchaser warrants that any materials, inserts, or  parts supplied to AIP will conform to all indicated  specifications and will be timely delivered. AIP shall not be liable for any damages related to parts  or materials supplied by Purchaser, including  damage to the part or material itself, or damage  caused by defective materials, inserts, or parts. AIP extends no warranty and shall not be liable for any  AIP goods that are defective as a result of Purchaser  supplied materials, inserts, or parts and Purchaser  shall be required to purchase any goods into which  AIP incorporates any Purchaser supplied materials,  inserts, or parts at the then applicable price for such  goods. 


AIP’s liability on any claim for loss or damage  arising out of any transactions under this Agreement or from the performance or breach thereof or  connected with any goods or services supplied  hereunder, or the sale, resale, operation or use of  goods, whether based on agreement, warranty, tort  (including negligence) or other grounds, shall not  exceed the price allocable to such goods or services  or part thereof involved in the claim, regardless of  cause or fault. Purchaser’s remedies are limited to  the return of non-conforming goods and repayment  of the price or to the repair and replacement of nonconforming goods, subject to the provisions of  paragraph 7. This limitation of liability and  remedies reflects a deliberate and bargained-for  allocation of risks between AIP and Purchaser and  constitutes the basis of the parties’ bargain, without  which AIP would not have agreed to the price or  terms of this transaction. AIP SHALL NOT IN ANY EVENT BE LIABLE  WHETHER AS A RESULT OF BREACH OF  AGREEMENT, WARRANTY, TORT  (INCLUDING NEGLIGENCE) OR OTHER  GROUNDS FOR INCIDENTAL, SPECIAL OR  CONSEQUENTIAL DAMAGES INCLUDING,  BUT NOT LIMITED TO, LOSS OF PROFITS OR  REVENUE, LOSS OF USE OF GOODS OR  ASSOCIATED PRODUCTS, BUSINESS  INTERRUPTION, COST OF CAPITAL, COST OF  SUBSTITUTE GOODS, FACILITIES OR  SERVICES, DOWNTIME COSTS, OR CLAIMS  OF CUSTOMERS OF PURCHASER FOR SUCH  DAMAGE. In addition, if AIP furnishes Purchaser  with advice or other assistance regarding any goods  or services supplied hereunder, or any system or  equipment in which any such goods may be  installed, and which is not required pursuant to this transaction, the furnishing of the advice or  assistance will not subject AIP to any liability,  whether based on agreement, warranty, tort  (including negligence) or other grounds. In the event Purchaser modifies AIP goods or  incorporates AIP goods into another product or  component part, Purchaser agrees to hold harmless  and indemnify AIP from any and all claims,  liabilities, losses, costs and expenses (including SLK_TOL: #1981483v1 4 reasonable attorneys’ fees) involving personal  injury or property damage. Purchaser also agrees to  hold harmless and indemnify AIP from any patent  or other intellectual property claims related to  (i) any AIP goods made in accordance with  Purchaser’s designs or specifications; or (ii) the use  of any drawings provided to AIP by Purchaser for  use in the manufacture, production or assembly of  such goods. 


The failure of AIP to insist in any one or more  instances, upon the performance of any of the  Terms and Conditions as set forth herein or the  failure of AIP to exercise any of its rights hereunder  shall not be construed as a waiver or relinquishment  of any such terms, conditions or rights and shall not  effect AIP’s right to insist on strict performance and  compliance with regard to any future performance  of these Terms and Conditions. All transactions  shall be governed by the laws of the State of  Florida, United States of America, excluding  conflict law rules. The provisions of the United  Nations Convention on Agreements for the  International Sale of Goods shall not apply. 


Any dispute, controversy or claim arising out of or  related to this transaction where the amount in  controversy does not exceed the sum of $50,000,  exclusive of interest and costs, shall be resolved by  means of binding arbitration. A demand for  arbitration shall be served on the other party by  certified mail. Within forty-five (45) days after a  party demands arbitration, the parties shall select a  single arbitrator. The selected arbitrator shall  conduct the arbitration in a manner substantially  similar to the procedures set forth in the  Commercial Arbitration Rule of the American  Arbitration Association (“AAA”). If the parties are  unable to agree on an arbitrator, the party  demanding arbitration shall file a demand for  arbitration with the AAA and the arbitration shall  then proceed in accordance with the Commercial  Arbitration Rules of the AAA. In all circumstances,  the arbitration shall take place in Tampa, Florida. Any dispute, controversy or claim arising out of this transaction where the amount in controversy  exceeds the sum of $50,000, exclusive of interest  and costs, shall be adjudicated exclusively by a  court of competent jurisdiction in Tampa, Florida. Purchaser consents to personal jurisdiction and  venue in Tampa, Florida and agrees not to take any  action to challenge such jurisdiction or venue. In the event of any action or proceeding related to a transaction subject to this Agreement where AIP is  determined to be the prevailing party with regard to  some or all claims, Purchaser agrees to pay all of  AIP’s attorney’s fees and litigation costs up through  and including any appeal. 


Neither party shall assign or delegate any of its  rights or obligations under this Agreement without  the prior written consent of the other party, which  such consent shall not be unreasonably withheld,  except that either party may assign or delegate its  rights or obligations hereunder to an Affiliate  without the other party’s consent. As used herein,  the term “Affiliate” shall mean any entity that  directly, or indirectly through one or more  intermediaries, controls or is controlled by, or is  under common control with the entity specified. AIP may terminate this Agreement upon written  notice to Purchaser without any further liability to  Purchaser if there is a change of control of  Purchaser. The Agreement constitutes the entire  agreement between the parties with respect to its  subject matter, and supersedes all prior oral or  written representations or agreements by the parties  with respect to the subject matter of this Agreement. Neither the Agreement nor any of its provisions  may be modified, amended or waived, whether  orally, through the parties’ course of performance,  course of dealing or course of conduct, or  manifested in any other way, unless in writing and  signed by an authorized officer of AIP. It is the  express intention of the parties that such  requirement for written modifications, amendments  or waivers be strictly enforced notwithstanding  judicial precedent or statutory provisions to the  contrary. Any provision found invalid or  unenforceable will not affect the validity or  enforceability of any other provision and the invalid  provision may be judicially modified to the extent  enforceable.