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     Terms and Conditions of Sale

     ACCEPTANCE

    All descriptions, quotations, proposals, offers, acknowledgments, acceptances and sales of goods and related services (hereinafter referred

    to as "goods") of Continental Motors, Inc. ("CMI") are subject to the terms and conditions set forth on the face and back of this form which constitutes

    CMI’s contract for sale of the goods ("Contract"). CMI’s acceptance of any offer by Buyer (as designated on the face of this Contract) is expressly

    conditioned on Buyer's assent to the express terms contained on the face and back of this Contract, whether additional to or different from those

    contained in Buyer's purchase order or any other form or document previously or hereafter supplied by Buyer to CMI. Buyer will be deemed to have

    assented to these terms and conditions unless CMI receives notice of objections within 10 days after Buyer's receipt of this Contract or prior to

    delivery or other performance of Buyer's purchase order, whichever occurs earlier.


    All quotations by CMI are subject to change or withdrawal without prior notice to Buyer unless otherwise specified in the quotation.

    Quotations are subject to CMI’s approval of Buyer's credit.


    This contract is not an offer to sell by CMI. If, however, this Contract is deemed to be an offer to sell, acceptance of this Contract is

    expressly limited to acceptance of the express terms and conditions contained on the face and back of this Contract. Any proposal for additional or

    different terms in any document supplied by Buyer or any attempt by Buyer to vary in any degree any of the terms of the offer in Buyer's acceptance

    is hereby objected to and rejected.


    PRICES; PAYMENT

    Prices are F.O.B. CMI’s plant. All prices quoted are subject to change, without notice, at any time prior to CMI's acceptance of Buyer's

    order. Prices are exclusive of applicable sales, excise, manufacturer's, use or other taxes, duties, tariffs or similar charges levied by either local, state

    or federal authorities. All such taxes, duties, tariffs or similar charges are for Buyer's account.

     

    Terms of payment shall be net 30 days, from date of shipment or receipt of invoice, whichever is earlier, unless otherwise specified on the

    face of this Contract. Payments are to be made in United States funds. Delinquent accounts will be charged interest at the rate of 1½% per month, or

    the maximum allowed by applicable law, whichever is lower. If Buyer defaults in any payment when due under this Contract or any other contract,

    CMI, at its option and without prejudice to its other lawful remedies, may defer delivery or cancel this Contract.

     

    If the financial condition of Buyer at any time does not, in the judgment of CMI, justify continuance of the work to be performed by CMI

    hereunder on the terms of payment agreed upon, CMI may require full or partial payment in advance or shall be entitled to cancel any order then

    outstanding and shall receive reimbursement for its reasonable and proper cancellation charges. In the event of bankruptcy or insolvency of Buyer or

    in the event any petition is filed against Buyer, voluntarily or involuntarily, under the bankruptcy or any insolvency laws, Buyer agrees that these

    terms and conditions shall not be deemed to constitute an executory contract and that CMI shall be entitled to cancel any order then outstanding at any

    time during the period allowed for filing claims against the estate and shall receive reimbursement for its reasonable and proper cancellation charges.

    The rights of CMI under this paragraph are cumulative and in addition to all rights available to CMI at law or in equity.

     

     

    DELIVERY; RISK OF LOSS

    Unless otherwise stated on the face of this Contract, delivery shall be F.O.B. CMI's plant. All delivery dates are estimates. CMI SHALL

    NOT BE LIABLE FOR ANY LOSSES, DAMAGES OR PENALTIES IF ESTIMATED SHIPPING OR DELIVERY DATES ARE NOT MET. CMI

    reserves the right without penalty to deliver prior to requested delivery dates and to deliver in installments, each to be separately invoiced and paid

    when due without regard to subsequent deliveries. Risk of loss shall pass to Buyer upon CMI's delivery to a carrier at CMI's plant. Buyer shall

    inspect products immediately upon receipt, notify CMI in writing of any claims for shortages, defects or damages and hold the damaged or defective

    products for CMI's written instructions concerning disposition. If Buyer fails to so notify CMI within 10 days after the goods have been received by

    Buyer, the goods shall conclusively be deemed to conform to the terms, conditions and specifications of this Contract and to have been accepted by

    Buyer. Goods may be returned at the expense of CMI only after inspection by CMI and upon receipt by the Buyer of definite shipping instructions

    from CMI. Goods returned prior to receiving shipping instructions from CMI or which do not conform to such instructions are at Buyer's sole risk

    and expense. Buyer shall pay all transportation charges covering any goods returned to CMI that are not defective. CMI shall have the right to cure

    the tender of damaged or defective goods by substituting a conforming tender within a reasonable time.

     

     

    FORCE MAJEURE

    CMI shall not be responsible for delays or failures in performance and shall have no liability to Seller resulting from causes beyond its

    reasonable control. Causes beyond CMI's reasonable control include but shall not be limited to acts of God, epidemics, earthquakes, unusually severe

    weather, floods or other natural disasters, war, riot, fire, accident, explosion, strikes or other labor trouble, government acts or omissions, delay or

    default by subcontractors or suppliers of materials or services, transportation difficulty or shortages in labor, fuel, materials, supplies or power at

    current prices (the "Force Majeure Event").

     

    If a Force Majeure Event impairing CMI's performance should last more than 30 days, CMI may elect, at its option, to terminate this

    Contract.

     

    If CMI is unable because of a Force Majeure Event to supply the total quantity of goods specified in Buyer's order, CMI may allocate its

    available supply among any or all of its buyers on such basis as CMI may deem commercially fair and practical, without liability for any failure of

    performance which may result therefrom.

     

    PACKING; STORAGE; SPECIAL SERVICES

    Prices do not include storage, packing or cartage service. Storage for any reason, including a Force Majeure Event, shall be at Buyer's risk

    and expense.

     

    CHANGES

    Buyer may make a written request for changes in drawings, designs or specifications for the goods, but acceptance of any requested change

    shall be at CMI's sole discretion, must be in writing and shall be upon such terms and conditions as CMI may require. If any such change causes an

    increase or decrease in the cost of or in the time required for performance, an equitable adjustment shall be made and this Contract modified

    accordingly.

     

     WARRANTY DISCLAIMER AND EXCLUSION OF CONSEQUENTIAL DAMAGES.

    CMI warrants the goods it sells with respect to defects and otherwise only under the terms of its published written warranties applicable to

    such goods. The provisions of such warranties are hereby incorporated by reference into these terms and conditions. Copies of these warranties are

    available upon request. THE SOLE AND EXCLUSIVE REMEDY UNDER CMI’s WRITTEN WARRANTIES IS LIMITED TO REPAIR OR

    REPLACEMENT AS SPECIFIED IN SUCH WARRANTIES. THERE ARE NO OTHER WARRANTIES EXPRESS OR IMPLIED APPLICABLE

    TO THE GOODS SOLD BY CMI TO BUYER. SPECIFICALLY, BUT WITHOUT LIMITATION, THERE ARE NO IMPLIED WARRANTIES

    OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

     

    IN NO EVENT WILL CMI BE RESPONSIBLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF

    ANY DEFECT IN ANY GOODS IT SELLS, ARISING OUT OF THE FAILURE OF ANY GOODS IT SELLS TO OPERATE OR PERFORM

    PROPERLY OR ADEQUATELY, OR ARISING OUT OF ANY BREACH OF CMI'S WRITTEN WARRANTIES.

    No person is authorized to give any other warranty or to assume any additional obligation or liability on behalf of Seller.

     

    REPRESENTATIONS

    There are no understandings, agreements, representations, or warranties, either oral or written, relative to the goods sold by CMI, including

    statements made in or conduct implied from past dealings, that are not fully expressed or incorporated herein, except for Converter Customer Program

    Agreements as applicable. No statement, recommendation, or assistance made or offered by CMI through its representatives in connection with the

    use of any goods sold shall be or constitute a waiver by CMI of any of the provisions hereof. The provisions of this document supersede and cancel

    any previous understanding or agreement between the parties with respect to the subject matter hereof, and, except for clerical errors, this document

    shall express the complete and final understanding of the parties.

     

    LIQUIDATION OF DAMAGES AND LIMITATION OF REMEDY

    CMI's liability on any claim of any kind, including negligence, for any loss or damage arising out of, connected with, or resulting from the

    performance or breach of any contract of sale shall be liquidated as the price allocable to the goods which gives rise to the claim. IN NO EVENT

    WILL CMI BE RESPONSIBLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM SUCH PERFORMANCE

    OR BREACH.

     

    ANY ACTION FOR BREACH OF CONTRACT MUST BE COMMENCED WITHIN ONE YEAR FROM THE DATE WHEN

    TENDER OF DELIVERY OF THE PRODUCT WHICH GIVES RISE TO THE CLAIM IS MADE.

    The provisions of this contract are for the benefit of the parties hereto and not for any other person.

     

    CANCELLATION

    Buyer's order and this Contract may not be terminated or canceled, either in whole or in part, without CMI's written consent, and then only

    under terms that will reimburse CMI for all applicable costs incurred by it, including but not limited to the costs of purchased materials and a

    reasonable allowance for profit.

     

    INFRINGEMENT

    CMI does not warrant that the use or sale of the goods delivered under this Contract will not infringe the claim of any patents covering the

    goods themselves or their use in combination with other products or in operation of any process. The sale of goods under this Contract is not intended

    as an inducement to infringe nor shall it be construed as recommending the infringement of any patent, extending any license, express or implied, or

    assuming any liability under any issued or pending patent. If goods are to be manufactured to meet Buyer's specifications, requirements or designs,

    Buyer will defend, indemnify and hold CMI (and its officers, directors, employees, agents, customers and other vendors) harmless from and against

    any and all claims, demands, suits, proceedings, costs, liabilities, expenses, royalties, profits, judgments, fines or penalties, including interest, court

    costs and attorney's fees, which, in whole or in part, arise out of or are in connection with any actual or alleged infringement or violation of any

    patent, registered design, copyright, trademark, tradename, license or other proprietary right of any third party, relating to the manufacture, sale or use

    of the goods.

     

    APPLICABLE LAW

    This Contract shall be governed by the laws of the State of Alabama without regard to its choice of law rules.

     

    PROPRIETARY INFORMATION

    Buyer shall consider all materials and information furnished by CMI in the course of bidding, negotiating or performing this Contract to be

    confidential and proprietary to CMI and shall not disclose any such materials or information to any other persons, or use such material or information

    itself for any purpose other than performing this Contract unless Buyer obtains prior written permission from CMI to do so. All such material and

    information shall be returned to CMI upon termination of this Contract for any reason. Unless otherwise agreed in writing, no information or

    knowledge, whether commercial, financial, or technical or otherwise, disclosed in any manner or at any time by Buyer to CMI shall be deemed

    proprietary or confidential. CMI may use such information or knowledge without restriction.

     

    MISCELLANEOUS

    a. Entire Agreement; Amendment. This Contract, together with any documents referred to on the face hereof, constitutes the

    complete and exclusive agreement between the parties, herein, except for Converter Customer Program Agreements as applicable. All prior and

    contemporaneous agreements, understandings and proposals, oral or written, between the parties relating to this subject area are null and void and

    superseded by this Contract, herein, except for Converter Customer Program Agreements as applicable. This Contract may be modified or amended

    only by a writing signed by a duly authorized representative of both parties.

     

    b. Waiver, Severability. No right or obligation of a party shall be waived and no breach excused unless the waiver or consent is in

    writing and signed by a duly acknowledged representative of the party claimed to have waived or consented. Any provision of this Contract

    prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remaining provisions of the Contract.

    c. Assignment. Buyer may neither delegate its performance nor assign any rights or claims under this Contract without

     

    the prior written consent of CMI, which may be granted or withheld in CMI's sole discretion. Any such attempted delegation or assignment shall be

    void. CMI may subcontract the performance of any of the work under this Contract without Buyer's permission.

     

    d. Continuing Obligations. Each party's rights and obligations under paragraphs 2, 7, 11, 12 and 13 shall survive

    cancellation or termination of this Contract.

     

    e. Notices. All notices under this Contract shall be in writing and shall be deemed duly given if hand-delivered or if mailed by

    United States certified mail, prepaid, return receipt requested, or by Federal Express, to the parties or registered at the address stated on the face of this

    Contract (or to such other individual or address specified by either party in a notice to the other). Notice is effective upon receipt.

     

    f. Security Interest. To secure Buyer's obligation to make full payment to CMI, Buyer grants to CMI a security interest in all

    goods until the price for such goods is fully paid. Buyer agrees to execute financing statements and other documents reasonably necessary to create

    and perfect the security interest granted under this paragraph, each in form and substance satisfactory to CMI and its counsel.

     

     




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