R&E AUTOMATED SYSTEMS, LLC TERMS AND CONDITIONS

Offer of Sale – Offers of sale are based on the terms and conditions found on the front page(s) of this proposal and those provided below. Unless otherwise provided on the face hereof, offers are available for acceptance for a period of 30 days from the date of this offer.
Any document submitted by Buyer to Seller confirming its intention to purchase good(s) / service(s) described in the Agreement (quotation) will be deemed to constitute a confirmation and acceptance of the Agreement, even if the document states terms in addition to or different from those in the Agreement. All agreements between Seller and Buyer will be solely under the terms and conditions of the Agreement and exclusively these Terms and Conditions of Sale, and Seller objects to and rejects any and all additional or different terms contained in any document submitted to Seller by Buyer. Any execution by Seller of any other document submitted by Buyer in connection with the purchase of Goods / Services does not constitute acceptance of or agreement to any terms and conditions in addition to or different from those contained in the Agreement and these Terms and Conditions of Sale, but will constitute only acknowledgment of receipt of the document. In addition, notwithstanding any terms contained in any documents submitted by Buyer in connection with the purchase of goods/services described under the Agreement, the acceptance of delivery by Buyer of goods/services described in the Agreement will constitute a course of conduct constituting Buyer’s agreement to the terms and conditions of the Agreement and these Terms and Conditions of Sale, and expressly reject any additional or different terms and conditions.

Exclusivity – Seller’s acceptance of Buyer’s order is expressly conditional upon Buyer’s agreement to these terms and conditions. All inconsistent or additional terms, modifications, or changes are deemed material, are expressly rejected, and do not form a part of this agreement unless Seller expressly agrees to such terms in writing.

Prices and Payments – Prices are exclusive of taxes. Prices quoted by Seller are subject to change without notice. All payments are due in full within 30 days of mailing by Seller of the invoice. If Buyer fails to make any payment when due, such interest shall be charged one and one-half percent (1 1/2%) of the total amount due per month or part thereof; or the maximum legal rate allowed by law. Buyer grants to Seller a security interest in the products until payment in full has been collected and Buyer agrees to notify Seller prior to relocation of any product in which Seller has a security interest. Buyer shall execute any other document, including a financing statement or other document similar to the UCC-1, necessary to perfect Seller’s security interest in the products. Buyer authorizes Seller to file at Buyer’s expense any financing statement relating to the products without Buyer’s signature, except where prohibited by law. Buyer shall pay all related filing fees. When required by R&E, Buyer shall issue an Irrevocable Letter of Credit (LOC) in favor of R&E in the amount of 100% of the purchase price. The LOC is to be issued by a bank or other financial institution, approved by R&E, within thirty (30) days from the date Buyer places its purchase order with R&E. The LOC shall be valid until 100% of the Price is paid to R&E.

Title – Title to products does not pass to Buyer until Buyer has paid all amounts owed under this agreement. Should Buyer fail to make any payment when owed, Seller may enter Buyer’s premises without court order and remove the products.

Project Delays – Undo project startup delays are considered to be durations greater than six months past Buyer-supplied startup date or six months past Seller’s design completion. If such delays occur due solely to Buyers inability to provide Seller with access to necessary items, Sellers startup portion of the original proposal will be increased by 10%. Buyer will be liable for the excess charge.

Delivery – Seller shall not be liable for delivery delays beyond its control, including delays caused by its suppliers. All delivery dates are merely good faith estimates. All shipments are FOB Seller’s office, and the risk of loss passes to Buyer upon delivery.

Warranties – Seller does not warrant, express or implied, its services or products. SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES. SELLER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR PARTICULAR OR SPECIAL PURPOSES. SELLER SHALL UNDER NO CIRCUMSTANCES BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES REGARDLESS OF THE CAUSE.

Warranty Remedies – In the event Buyer believes a warranty does exist, Buyer must notify Seller of any alleged warranty claim within 2 days after such claim arises; otherwise Buyer waives all rights to such claims. This paragraph is for waiver purposes only and does not contravene/ void the Warranties Paragraph.

Returns – Seller does not warrant the products, which it distributes. Rather, the manufacturer supplies all warranties for these products and Buyer must deal directly with the product manufacturer for purposes of return, repair and exchange. All costs of return shall be the responsibility of Buyer. All returns will be pursuant to Seller’s instructions. Buyer must contact Seller for a Return Material Authorization (RMA) before returning any Goods / Services. All returns must reference the RMA number along with the original invoice number and the reason for return. Non-warranty returns of normal stock products that are unused and are in resalable condition will be subject to Seller’s return policies in effect at the time, including applicable restocking and transportation charges and other conditions of return. All sales of Goods/Services to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

Cancellations – In the event of cancellation of the Agreement by Buyer, or in the event of default under the Agreement by Buyer that is not cured within 30 days after notice by Seller, Buyer will pay to Seller on demand all direct and indirect costs (including, without limitation, all applicable restocking or cancellation charges, including reimbursement for direct costs assessed by the manufacturer) incurred directly or indirectly by Seller in connection with the Agreement, all as reasonably determined by Seller, plus any profit to be negotiated with Buyer. In no event of cancellation, however, will any amount payable by Buyer under the Agreement exceed the total price payable by Buyer for the Goods / Services.

Changes – Seller reserves the right from time to time to unilaterally correct any typographical or clerical errors, including errors in mathematical computation that may exist. Seller reserves the right at any time to submit a Change Order to Buyer. The Change Order shall be deemed accepted by Buyer unless Seller receives written notice from Buyer within five (5) days of the date marked on the Change Order. If the Buyer rejects the Change Order, Seller reserves the right to cancel the contract in its entirety without any penalty.

Indemnification – Buyer shall bear all risk of theft, loss or damage not caused by Seller or authorized Seller agents, for all goods / services acquired pursuant to this Agreement. Buyer agrees to defend, indemnify and hold harmless Seller, its subsidiaries and affiliates and its respective officers, directors, members, employees, and agents, from any and all claims, judgments, demands, liabilities, damages of any kind or nature, costs or expenses incurred in connection with any claims (including but not limited to: lawsuits, administrative claims, regulatory actions and/ or other proceedings to recover for personal injury or death, property damage, or economic loss) that relate in any manner or arise in any way from the Products, Goods, Materials, Services, Seller’s representations and/ or Seller’s performance, breach or failure to perform by Seller, without limitation, breach of warranty and claims for violation of laws or ordinances. Buyer shall defend, indemnify, and hold harmless Seller, its subsidiaries, and affiliates and its respective officers, directors, members, employees, and agents, from any and all claims, judgments, demands, liabilities, damages of any kind or nature, costs or expenses incurred in connection with any alleged or actual failure, defect or deficiency of any materials or products tested, serviced, or analyzed by Seller. Buyer’s indemnification obligation will apply regardless of whether the claim arises in tort, gross negligence, recklessness, contract, equity or otherwise. Buyer’s indemnification obligation will apply even if Seller furnishes all or a portion of the design, simulation, set-up, processing, programming, testing, services, materials, build, or construction used by Buyer.

Proprietary Rights – All designs and other proprietary rights provided by Seller to Buyer remain the property of Seller, and Buyer shall honor all proprietary rights/ information.

Patent Rights – Some items purchased by Seller may be subject to patent rights. Seller expressly acknowledges and promises that Seller or its agents will not attempt to use, modify, or reverse engineer the item in order to infringe, create, or modify the patent.

Limitation of Liability – The Seller’s price is based on the enforceability of this limitation of liability, and the Buyer understands that the price would be substantially higher without this limitation. Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, used on, attached to or packaged together with, the Goods/ Services. Third Party Products are expressly not covered or warrantied. Seller is not responsible for any inaccuracy which may be directly or indirectly related to Third Party Products. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. ALL THIRD PARTY GOODS ARE SUPPLIED/ USED “AS IS.” Seller expressly waives all liability, which may relate to or stem from any Goods or materials supplied by the Buyer. Seller has no control over the ultimate utilization of any materials or equipment, which it tests and shall not be liable for said goods, materials, or equipment. Buyer assumes all responsibility and liability of the aforementioned.

SELLER SHALL HAVE NO LIABILITY TO BUYER OR THIRD PARTIES FOR LOST PROFITS OR FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND, WHETHER ARISING IN CONTRACT, TORT, OR PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POTENTIAL DAMAGES IN ADVANCE. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY DAMAGES WHATSOEVER IN EXCESS OF THE CONTRACT PRICE. IN THE EVENT THAT ANY WARRANTY OR WARRANTY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, OR IS HELD TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, IN CONSIDERATION OF THE OTHER PROVISIONS OF THIS AGREEMENT, THE PARTIES UNDERSTAND AND AGREE THAT ALL LIMITATIONS OF LIABILITY UNDER THIS PROVISION WILL NEVERTHELESS REMAIN IN EFFECT. All technical advice, recommendations, and services of Seller are intended for use by persons having skill, at their own risk, and Seller assumes no responsibility, and Buyer herby waives all claims against Seller, for results obtained or damages incurred from the use of Seller’s advice, recommendations, and services. Buyer will indemnify and hold Seller harmless from and against all damages, costs, and expenses resulting from the aforementioned.

Waiver – No waiver by Seller of a right under this agreement shall waive any other rights of Seller.

Governing Law – This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to its choice of law provisions.

Submission to Jurisdiction – Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Michigan in each case located in the County of Macomb, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

Attorney fees – In the event of litigation or other proceedings by Seller to enforce or defend any term or provision of this Agreement or action stemming from this transaction, Buyer agrees to pay all costs and expenses sustained by Seller, including but not limited to, actual attorney’s fees and costs. Seller shall be entitled to reimbursement of actual attorney fees and collection costs incurred to enforce its rights under this agreement.

Force Majeure – Neither party shall be responsible for delays or failure in performance of this Agreement (other than failure to pay any amounts due) to the extent that such party was hindered in its performance by any act of God, civil commotion, labor dispute, unavailability or shortages of materials or any other occurrence beyond its reasonable control.

Seller’s Agents – Buyer acknowledges that it has been advised that no agent, employee, representative or dealer of Seller has any authority to bind Seller to any affirmation, promise, representation, or warranty concerning any of the products and, unless such affirmation, promise, representation, or warranty is specifically set forth in this Agreement, it does not form a basis of this bargain and shall not be enforceable against Seller.

Severability – Any legally unenforceable provision may be severed from this agreement, and the remaining terms and conditions will be enforced as a whole.

Compliance with Law – Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods/ Services under this Agreement. Buyer assumes all responsibility for shipments of Goods/ Services requiring any government import clearance.

Entire Agreement – This Agreement is the full and complete statement of the obligations of the parties relating to the subject matter hereof, and supersedes all previous agreements, understandings, negotiations and proposals. No provisions of this Agreement shall be deemed waived, amended, or modified by any party unless such waiver, amendment or modification shall be in writing and signed by a duly authorized officer of all parties. Said waiver, amendment or modification shall be a separate and distinct document titled “Waiver, Amendment, or Modification Agreement” that expressly states that it is waiving, amending, or modifying these specific terms.

Relationship of the Parties – The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

Rev. 4-24-14