TRANSHIELD, INC. TERMS AND CONDITIONS OF SALE
1. General Terms and Applicability. All sales by Transhield, Inc. (the “Company”) are governed by and subject to
these Terms and Conditions of Sale (these “Terms”), as may be amended from time to time by the Company. These standard
terms and conditions form a binding agreement between the original purchaser (“Customer”) of products, materials and goods
(the “Goods”) and the Company (the “Agreement”). This Agreement incorporates all additional terms and conditions stated in
quotations, pricelists, invoices, order acknowledgments and other documentation furnished by the Company to Customer
(“Additional Terms”). These Terms govern in the event of any conflict or inconsistency with any Additional Terms. There are
no other terms of agreement. The Company rejects any terms or conditions contained in Customer’s purchase order or other
documents that are additional to or in conflict or inconsistent with this Agreement, and any such terms or conditions shall be
without force or effect. If Customer has not otherwise agreed to these terms, Customer’s acceptance of delivery of, or full or
partial payment for, the Goods will constitute Customer’s acceptance of these terms and conditions. This Agreement cannot be
modified or amended except by a subsequent written instrument executed by the parties which expressly supersedes the
provisions of this Agreement.
2. Orders. All orders for Goods sold by the Company must be in the form of a purchase order. All purchase orders are
subject to final acceptance by the Company. Following acceptance by the Company, purchase orders may not be changed or
canceled without the prior written approval of the Company. Customer may request changes to or cancellation of a purchase
order by submitting a written request to the Company. Customer shall reimburse the Company for all expenses and losses
resulting from any change or cancellation. In the event of any suspension of payment or the institution of any proceedings by
the Company against Customer, or the initiation of voluntary or involuntary proceedings in bankruptcy or insolvency
proceedings, or proceedings under any provisions of the United States Bankruptcy Code in which Customer is a debtor, or for
the appointment of a receiver or a trustee or an assignee for the benefit of creditors, the Company shall be entitled to cancel
the order or any subsequently entered into agreement forthwith, without liability to Customer for loss of anticipated profits or
3. Prices. The prices for Goods are those as specifically quoted by the Company. Except as otherwise stated in writing
by the Company, quoted prices are subject to change by the Company without notice until an order acknowledgement has
been issued by the Company. Prices quoted are exclusive of packaging/shipping and taxes, including, without limitation,
sales, excise, use and property taxes. Customer agrees to pay all applicable taxes and charges.
4. Payment Terms. Full payment for all Goods is due in accordance with the terms and payment procedures stated in
the invoice issued by the Company to Customer. All payments shall be made in U.S. Dollars. Invoices not fully paid by the
specified payment date are deemed overdue, and unpaid balances will accrue interest at the rate of 18% per annum or at the
highest rate permitted by law, if lower. The Company will be entitled to suspend performance of any order or obligation to
Customer until Customer’s account is current. If at any time the Company determines in its sole discretion that Customer’s
financial condition, payment practices or credit rating does not justify a sale on credit, the Company may require advance
payment or such other payment assurances as it may deem acceptable in its sole discretion, and it may cancel any order
without recourse by Customer. Customer will reimburse the Company for all expenses, including reasonable attorney and
legal fees, incurred to collect any delinquent account, enforce its rights under this Agreement, or pursue any lawsuit,
arbitration, or other proceeding related to this Agreement.
5. Title to Goods. Title to and risk of loss of the Goods will pass to Customer upon delivery of the Goods to the carrier
at the Company’s place of business. Customer grants the Company a security interest in the Goods and will keep the Goods
properly stored, insured and identifiable as subject to the Company’s lien until full payment is made by Customer for the
Goods. Customer agrees that the Company may enter Customer’s premises to repossess Goods for which payment is overdue
and file financing statements to reflect its lien in the Goods.
6. Delivery and Delay. The Company will deliver Goods to Customer FOB at the Company’s place of business within
a variance of 10 percent. Delivery dates specified in a quotation or order acknowledgment are estimates only and time is not
of the essence. Customer assumes the risk of loss of Goods once delivered to the carrier or ten (10) days after the Company
notifies Customer that the Goods are ready for pick-up. The Company may deliver all of the Goods at one time or in portions
from time to time. All deliveries are subject to modifications or cancellation due to events beyond the Company’s reasonable
control, including without limitation acts of God, compliance with any law, order, rule or regulation of any governmental or
other authority, disruption of suppliers, delay in transportation, labor disputes, strikes, failure of equipment or systems, or
shortages of any labor or materials or services. The Company will not be liable for any loss of profit or property, or for any
direct, indirect, special, incidental, consequential or other damages caused by any delay or failure to deliver. If Customer
causes or requests a delay in the manufacture or delivery of any Goods, Customer will reimburse the Company for all
resulting damages, including without limitation reasonable storage expenses. Customer shall acquire and maintain sufficient
property and casualty insurance to cover any loss or risk of loss to any Goods.
7. Inspection and Acceptance. Customer shall inspect the Goods within five (5) days of receipt (“Inspection
Period”). Customer will be deemed to have accepted the Goods unless it notifies the Company in writing addressed to 2932
Thorne Drive, Elkhart, Indiana 46514, Attention: Vice President of Sales, of any Nonconforming Goods (as defined below)
during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller.
“Nonconforming Goods” means only the following: (a) Goods shipped are different than identified in Customer’s purchase
order; (b) Goods’ label or packaging incorrectly identifies its contents, or (c) Goods contain manufacturing defects, which
include only defects in material (zippers, buckles, fabrics, etc.) or workmanship (seams, construction, etc.). Goods that have
been altered, shrunk, cut or otherwise modified, and defects that arise out of installation or transport of the Goods will not
constitute manufacturing defects.
8. Remedies. If Customer timely notifies the Company of any Nonconforming Goods, the Company shall, in its sole
discretion, (a) replace such Nonconforming Goods with conforming Goods, or (b) credit or refund the price for such
Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Customer in connection
therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to the Company’s facility located in
Elkhart, Indiana. If the Company exercises its option to replace Nonconforming Products, the Company shall, after receiving
Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced
Products. Customer acknowledges and agrees that the remedies set forth herein are Customer’s exclusive remedies for the
delivery of Nonconforming Goods. Except as provided herein, all sales of Goods to Customer are made on a one-way basis
and Customer has no right to return Products.
9. Limited Warranty. The Company warrants to Customer that for a period of twelve (12) months from the date of
shipment of the Goods, or if earlier, until such time that the Goods are installed, used for their intended purpose and removed,
altered or adjusted (in any way whatsoever), shrunk, cut or otherwise modified, including any removal or modification taking
place during the shipment of product to which the Goods are attached (“Warranty Period”), that such Goods conform to
Seller’s published specifications in effect as of the date of shipment and will be free from material defects in material and
workmanship. EXCEPT FOR THE WARRANTY SET FORTH IN THE PRIOR SENTENCE, SELLER MAKES NO
WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF
MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER
EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE
OR OTHERWISE. The Company shall not be liable for a breach of the warranty set forth herein unless: (i) Customer gives
written notice of the defect, reasonably described, to the Company within thirty (30) days of the time when Customer
discovers or ought to have discovered the defect; (ii) the Company is given a reasonable opportunity after receiving the notice
to examine such Goods and Customer (if requested to do so by the Company) returns such Goods to the Company’s place of
business at the Company’s cost for the examination to take place there; and (iii) the Company reasonably verifies Customer’s
claim that the Goods are defective. The Company shall not be liable for a breach of the warranty set forth herein if: (a)
Customer makes any further use of such Goods after giving such notice; (b) the defect arises because Customer failed to
follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the
Goods; or (c) Customer alters or repairs such Goods without the prior written consent of the Company. With respect to any
such Goods during the Warranty Period, the Company shall, in its sole discretion, either: (x) repair or replace such Goods or
(y) credit or refund the price of such Goods at the pro rata contract rate provided that, if the Company so requests, Customer
shall, at the Company’s expense, return such Goods to the Company at its place of business.
10. Limitation on Liability. THE COMPANY PROVIDES AND CUSTOMER ACCEPTS ALL GOODS “AS IS”
WITH ALL FAULTS AND ASSUMES THE RISK OF LOSS FOR ANY DEFECT OR NONCONFORMITY. THE
COMPANY DISCLAIMS ALL WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE. THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OR USE. THE COMPANY SHALL HAVE NO LIABILITY TO CUSTOMER OR ANYONE ELSE FOR
CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND
WHATSOEVER, INCLUDING WITHOUT LIMITATION PERSONAL INJURY, DEATH, PROPERTY DAMAGE, LOST
PROFITS, LABOR COSTS, OR ANY OTHER PECUNIARY DAMAGE, WHETHER DUE TO ANY DEFECT IN THE
GOODS, BREACH OF THIS AGREEMENT, DELAY, NON-DELIVERY, NON-PERFORMANCE, RECALL, OR ANY
OTHER REASON. ALL CLAIMS IN TORT, STRICT LIABILITY, AND FAILURE OF ESSENTIAL PURPOSE ARE
WAIVED, RELEASED, AND EXCLUDED, INCLUDING CLAIMS OF THE COMPANY’S NEGLIGENCE. CUSTOMER
WAIVES, RELIEVES AND RELEASES THE COMPANY FROM ANY AND ALL CLAIMS, CAUSES OF ACTION,
AND LIABILITY FOR ANY REDHIBITORY, PATENT, OR LATENT VICES OR DEFECTS IN THE GOODS. UNDER
NO CIRCUMSTANCES SHALL THE COMPANY’S LIABILITY, IF ANY, WHETHER BASED ON CONTRACT, TORT,
WARRANTY, STRICT LIABILITY, OR ANY OTHER THEORY, EXCEED THE PURCHASE PRICE OF THE GOODS.
THERE ARE NO THIRD-PARTY BENEFICIARIES TO THIS AGREEMENT, AND CUSTOMER SHALL PASS THESE
TERMS AND LIMITATIONS TO SUBSEQUENT BUYERS AND USERS OF THE GOODS. CUSTOMER
ACKNOWLEDGES THAT THESE LIMITATIONS AND WAIVERS HAVE BEEN BROUGHT TO ITS
ATTENTION, THAT CUSTOMER HAS READ AND UNDERSTANDS ALL TERMS AND AGREES TO BE SO
BOUND, AND THAT CUSTOMER’S RECEIPT OF THE AGREEMENT AND GOODS, AND ANY PAYMENT
FOR THESE, SIGNIFIES THAT CUSTOMER HAS VOLUNTARILY AND KNOWINGLY CONSENTED TO ALL
TERMS, INCLUDING THESE WAIVERS AND LIMITATIONS.
11. Intellectual Property; Confidentiality. Customer acknowledges the Company’s ownership of all trademarks,
service marks, copyrights, imprints, rights of publicity, patents, design patents, registered designs, industrial designs, product
design, trade secrets and other intangible rights relating to the Goods (“Company Intellectual Property”) and agrees that
Customer shall have no right, title or interest whatsoever in any Company Intellectual Property. All non-public, confidential
or proprietary information of the Company, including, but not limited to, Company Intellectual Property and all other
specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing,
discounts or rebates, disclosed by the Company to Customer, whether disclosed orally or disclosed or accessed in written,
electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in
connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be
disclosed or copied unless authorized in advance by the Company in writing. Upon the Company’s request, Customer shall
promptly return all documents and other materials received from the Company. The Company shall be entitled to injunctive
relief for any violation of this provision.
12. Patent Liability. Where the Company supplies goods to Customer’s specifications and/or manufactured or
fabricated from Customer’s blueprint, sketch, or specifications, Customer, at its own expense, shall defend any suit or
proceeding of any kind whatsoever brought against the Company in any capacity if such suit or proceeding involves a claim
that any goods or any part thereof constitutes an infringement of any patent, copyright or trademark and Customer shall pay
or indemnify any and all judgments, expenses and costs which may be awarded against or incurred by the Company related
to such legal action.
13. Period of Limitations. No claim, suit, or other proceeding arising out of or related to the Goods or this Agreement,
including without limitation the limited warranty, may be brought by Customer after one (1) year from the date it accrues. No
discovery, estoppel, or other rule shall apply to extend this limitations period.
14. Indemnification. Customer shall defend, indemnify and hold harmless the Company and its subsidiaries, affiliates,
successors or assigns and each of their respective directors, officers, shareholders and employees (collectively,
“Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award,
penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any
right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or
occurring in connection with (a) use, handling, storage, transportation, possession, processing, fabrication, resale, or any
other activity involving the Goods after risk of loss has passed to Customer, (b) Customer’s negligence, willful misconduct or
breach of these Terms. The Company shall not be responsible for any Losses sustained by Customer or any other person, and
Customer waives all such claims, arising out of or resulting from the improper installation or misapplication of the Goods, or
from any defect or alleged defect in the design, manufacture, instructions, warnings or labeling of any of the Goods or any
other product liability claim relating to any of the Goods. Customer is solely responsible for all training related to the
installation and use of any of the Goods. The obligations, indemnities and covenants contained in this paragraph shall
survive the consummation or termination of this transaction.
15. Waiver. No waiver by the Company of any of the provisions of this Agreement is effective unless explicitly set
forth in writing and signed by the Company. No failure to exercise, or delay in exercising, any right, remedy, power or
privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any
right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.
16. Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or obligations under this
Agreement without the prior written consent of the Company. Any purported assignment or delegation in violation of this
provision shall be null and void. No assignment or delegation shall relieve the Company of any of its obligations hereunder.
The Company may at any time assign or transfer any or all of its rights or obligations under this Agreement without
Customer’s prior written consent to any affiliate or to any person acquiring all or substantially all of the Company’s assets.
17. Governing Law and Venue. This Agreement shall be governed by, and interpreted according to, Indiana law,
excluding the United Nations Convention on Contracts for the International Sale of Goods. Any legal action or proceeding
with respect to this Agreement may be brought only in the state or federal courts located in Elkhart County, Indiana or St.
Joseph County, Indiana. Vendor hereby irrevocably consents that such courts shall have personal jurisdiction over Vendor
and waives any objection that the court is an inconvenient forum.