OX ENGINEERED PRODUCTS, LLC

TERMS AND CONDITIONS OF SALE

These terms and conditions of sale (the “Terms and Conditions”) are applicable to any order (an “Order”) for products (“Products”) manufactured by Ox Engineered Products, LLC, a Pennsylvania limited liability company (“Ox”) that is placed with and accepted by Ox and which is subsequently shipped to or used by the Product purchaser (the “Buyer”) or by any third party to whom the Buyer transfers or arranges transfer of the Products:

1. SCOPE OF AGREEMENT. Upon acceptance of an Order placed by Buyer, Ox will supply the Products specified in the Order to Buyer, pursuant to these Terms and Conditions.  Ox’s acceptance of such order submitted by Buyer is expressly conditioned upon acceptance of these Terms and Conditions notwithstanding any contrary provision contained in Buyer’s purchase orders, acceptances, acknowledgements or other documents. Buyer’s acceptance and use of the Products described by the Order acts as confirmation of acceptance of these Terms and Conditions.  The details of the Products (e.g. quantity, price, and shipment information) shall be set forth in the relevant Order.
2. PRICE AND TERMS.(a) The prices payable by Buyer for the Products to be supplied by Ox under these Terms and Conditions will be specified in the applicable Order. Unless otherwise expressly stated in an Order, all prices exclude shipping and taxes. (b) Payment terms are net thirty (30) calendar days from the date of the invoice. Ox reserves the right to charge and Buyer agrees to pay finance charges of one and one-half percent (1.5%) per month on balances remaining unpaid for 30 days or more.  Ox reserves the right: (i) to withhold shipment of the Products or any subsequent Products until full payment is made; and (ii) to revoke any credit extended to Buyer. In the event that Buyer’s account is more than ninety (90) days in arrears, Buyer shall reimburse Ox for the reasonable costs, including attorney’s fees, of collecting any balance from Buyer. (c) Should Buyer request credit terms from Ox, Buyer agrees provide copies of its most recent audited financial statements and such other additional information Ox may request to determine credit status or credits limits. (d) Buyer shall provide notice within five (5) business days of the occurrence of any event which materially affects Buyer’s ability to pay for the Products.  Such events shall include, but not be limited to: (i) any material uncured default by Buyer on any debt obligations of Buyer; (ii) any material default of any major debtor of Buyer on any payment due to Buyer from the debtor; or (iii) any labor strike or dispute ongoing at Buyer. (e) Ox’s pricing schedule is subject to change without notice. (f) Unless otherwise specified in the Order, Products will be delivered FOB Ox’s manufacturing facility and will be shipped to Buyer via carriers selected by Ox.
3. INTELLECTUAL PROPERTY. Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product of Ox, and any proprietary data and information embodied in any physical item including, but not limited to, the Products themselves, and any other such proprietary data or information made or conceived by employees, consultants, representatives or agents of Ox during the existence of the relationship between Ox and Buyer shall remain the sole and exclusive property of Ox.
4. CONFIDENTIAL INFORMATION. Any information that parties receive or otherwise gain access to in connection with the provision by Ox of the Products to Buyer (collectively, the “Confidential Information”), shall be and remain the property of the disclosing party. Confidential Information shall not include information which: (i) was in the possession of the Receiving Party at the time it was first disclosed by the Disclosing Party; (ii) was in the public domain at the time it was disclosed to the Receiving Party; (iii) enters the public domain after disclosure through sources independent of the Receiving Party and through no breach of this provision by the Receiving Party; (iv) is made available by the Disclosing Party to a third party on an unrestricted, non-confidential basis; (v) was lawfully obtained by the Receiving Party from a third party not known by the Receiving Party to be under an obligation of confidentiality to the Disclosing Party; or (vi) the Receiving party can reasonably document was developed by the Receiving Party independently of any disclosure by the Disclosing Party. Confidential Information may be used only by Ox, to the extent necessary to fulfill the Order, and by Buyer, to utilize the Products for their intended purpose.  The parties agree that neither shall disclose Confidential Information of the other to any third party except as may be necessary to accomplish such purposes.  In no event shall the Parties acquire any right, title or interest in and to Confidential Information of the other.
5. Buyer shall defend and indemnify Ox, its officers, directors, employees, agents, subsidiaries, and other affiliates from and against any and all claims, damages, liabilities, and expenses (including reasonable attorney fees) incurred in defending any claim asserted against Ox which arises from Buyer’s (or its agent’s) acts or omissions including, but not limited to, acts alleged to be negligent, grossly negligent or willful.   This indemnification obligation shall include any claim arising from Ox’s compliance with instructions, requirements, or specifications provided by or required by Buyer (including the use of information, artwork, logos, and/or trademarks provided by Buyer).  Ox agrees that it shall promptly provide notice to Buyer of any such claim, tender the defense of the claim to Buyer, and cooperate reasonably with Buyer in the defense of the claim.
6. In addition to any other rights a party may pursue, if either party materially breaches these Terms and Conditions, the non-breaching party may: (a) terminate the Order immediately with written notice to the other party; and (b) seek to obtain injunctive relief to prevent such breach or to otherwise enforce these Terms and Conditions. Failure to properly demand compliance with or performance of these Terms and Conditions shall not constitute a waiver of Ox’s rights hereunder.  Further, prior to filing any claim for damages for non-conformance or breach, Buyer shall provide Ox with reasonable notice of any alleged deficiencies in the Products and allow Ox a reasonable time to cure such alleged non-conformance or breach.
7. Ox warrants its products as expressly provided in its applicable Product warranties all of which are available from Ox and incorporated as if fully set forth here.  Beyond the rights and remedies set forth in the pertinent Product warranties, Ox makes no warranty of any kind, and disclaims any and all express or implied warranties of merchantability or fitness for a particular purpose.
8. LIMITATION OF LIABILITY. IN NO EVENT SHALL OX BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY FOR SUCH DAMAGES.  MOREOVER, OX’S TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED AS SET FORTH IN THE APPLICABLE PRODUCT WARRANTY.
9. Any notice provided pursuant to the Order or these Terms and Conditions shall be sent via nationally recognized overnight currier to the addresses on the Order or to such subsequent address as either party may in the future designate.
10. Except as otherwise provided, the Order and these Terms and Conditions shall be binding upon and inure to the benefit of the parties’ successors and lawful assigns.
11. RELATIONSHIP OF PARTIES.Buyer and Ox are separate entities. Nothing in the Order or these Terms and Conditions shall be construed to create a Principal and Agent or joint venture relationship.
12. COMPLIANCE WITH LAW.Each party shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.
13. GOVERNING LAW, JURISDICTION AND ENFORCEMENT.The Order and these Terms and Conditions shall be governed by, and construed in accordance with the laws of the State of Michigan, without regard to conflicts of law analysis.  The parties agree that jurisdiction and venue with regard to any suit brought which is related in any way to the Order or to these Terms and Conditions shall reside solely in the state and federal courts serving the county in which Ox’s headquarters are then located. Accordingly, Buyer consents to the exercise of personal and subject matter jurisdiction and venue over itself and its principals and employees by such courts for said purposes. To the extent that any portion of this provision may be deemed unenforceable by a court, the parties intend that this provision shall be construed as broadly as possible to limit the adjudication of disputes arising from the Order or from these Terms and Conditions to the courts serving the locality in which Ox’s headquarters are then located.
14. FORCE MAJEURE.Neither party shall be liable for any failure to perform or delay in performance of the Order or Terms and Conditions to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, cyberattacks, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond such party’s commercially reasonable control.
15. In the event any provision of the Order or these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Order and these Terms and Conditions will remain in full force and effect. All sections relating to payment, ownership, confidentiality, indemnification and duties of defense, representations and warranties, waiver, waiver of jury trial and provisions which by their terms may extend beyond the relationship between the parties shall survive the fulfillment of the Order continue throughout and beyond the relationship between the parties.
16. ENTIRE AGREEMENT. Each Order and these Terms and Conditions set forth the entire agreement and understanding between the parties as to the subject matter of the Order, and merge and supersede all prior discussions, agreements, and understandings of every kind and any nature between the Parties concerning the particular Order. No proposal, purchase order, order confirmation, acceptance, email, text or any other document provided by either Party to the other shall be deemed to amend the Order or these Terms and Conditions and any contradictory or additional terms of any such document shall be ineffective.  No party shall be bound by any condition, definition, or representations, other than as expressly set forth or provided for in the Order or in these Terms and Conditions. The Order or these Terms and Conditions may not be amended, supplemented, changed, or modified, except by agreement in writing signed by the parties to be bound thereby.