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Terms of Sale

1. Governing Terms. Buyer, by accepting these terms and conditions of sales without written objection, agrees to the terms and conditions of sales set forth herein together with the terms set forth on the reverse side hereof (hereinafter “Sales Contract”) and agrees that such terms and conditions shall supersede those of Buyer, if any, in all instances where conflict exists.

2. Acceptance of Order. Quotations are for prompt acceptance only, and therefore, are valid for thirty (30) days. An order shall not be binding on DIMCOGRAY Corporation (hereinafter “DIMCOGRAY”) until received and accepted by DIMCOGRAY. Orders accepted by us are not subject to cancellation, except with written consent and upon terms which will compensate DIMCOGRAY for payment of all expenses, overhead, and a reasonable profit thereon.

3. Shipments and Delivery. Delivery of all goods, materials, items, services, and products (hereinafter “Products”) shall be F.O.B. Factory unless otherwise specified. Title and risk of loss or damage to Products shall pass from DIMCOGRAY to Buyer upon delivery by DIMCOGRAY to the possession of the carrier. Any claims for loss or damage after risk of loss has passed as herein provided shall be filed with the carrier by Buyer.
    If, at the request of Buyer, shipments are postponed more than thirty (30) days, the amount due thereon shall become due thirty (30) days after notice that the Products are ready for shipment.
   Shipping dates are approximate and based on prompt receipt of all necessary information by DIMCOGRAY at its manufacturing facility. Products in stock are offered subject to prior sale or loss.
   DIMCOGRAY reserves the right to overship or undership each Product by ten percent (10%) unless otherwise specified in writing by Buyer on the face of their offer.

4. Force Majeure.   DIMCOGRAY shall not be liable for any loss or damage resulting from reasonable delays in delivery nor for delay in delivery or failure to manufacture due to causes beyond its reasonable control, including but not limited to, such as acts of God, acts of Buyer, acts of civil or military authority, priorities, fires, strikes, floods, epidemics, quarantine restrictions, war, riot, delays in transportation, car shortages, and inability due to causes beyond its reasonable control to obtain necessary labor, materials, or manufacturing facilities. Actual receipt of the Products by Buyer shall constitute a waiver of all claims for delay. In the event of such delay in delivery or failure to manufacture, DIMCOGRAY shall not be required to allocate production and deliveries between Buyers. DIMCOGRAY’S LIABILITY FOR FAILURE OR DELAY IN DELIVERY OF PRODUCTS, FOR ANY CAUSE WHATSOEVER WHETHER BEYOND DIMCOGRAY’S CONTROL OR NOT, SHALL NOT INCLUDE DIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES.

5. Prices. All prices quoted herein are subject to an addition equal to any tax or charge now existing or hereafter imposed by Federal, State or Municipal authorities upon Products herein described, or the production, sale, storage, distribution, or delivery thereof, or upon any feature of this transaction. DIMCOGRAY reserves the right to correct all typographical or clerical errors which may be present in the prices or specifications contained herein.

6. Payment and Credit. Each shipment shall be a separate transaction and payment shall be made accordingly. Unless otherwise agreed in writing, payment for Products shall be made on the basis of net 30 days from the date of invoice. If, in the exclusive judgment of DIMCOGRAY, the financial condition of Buyer at any time does not justify the commencement or continuance of production or shipment on the terms specified herein, DIMCOGRAY may, in addition to all other remedies it may have at law or in equity, make a written demand for full or partial payment in advance, suspend its performance until such payment is made, and cancel this Sales Contract if such payment is not received by DIMCOGRAY within thirty (30) days after delivery in person or mailing of such demand by DIMCOGRAY.

7. Service Charge and Costs of Collection. Buyer agrees to pay a service charge of the lesser of 1-1/2% per month or the maximum allowed by applicable law on all unpaid amounts after due date.  In the event that DIMCOGRAY has to proceed with collection action or litigation against Buyer, Buyer hereby agrees to reimburse DIMCOGRAY for its expenses, costs, and reasonable attorney’s fees incurred in pursuing such collection action or litigation.

8. Inspection and Acceptance. Products must be inspected and accepted at DIMCOGRAY’S factory. If Buyer does not wish to incur the expense of sending a representative to the factory to inspect Products at the time of shipment, DIMCOGRAY will, if requested by Buyer, furnish certified reports to Buyer that the Products were inspected and were found to have met the specifications in every way. In the event that Buyer neither inspects Products nor requests such certified reports, the Products will be deemed accepted by Buyer upon shipment.

9. Credit Returns. No Products will be accepted for credit or exchange unless its return has been authorized by DIMCOGRAY in writing prior to shipment.

10. Procedure for Claims. Claims for shortages must be made within ten (10) days after receipt of the Products by Buyer. Absence of such notice constitutes a waiver by Buyer on all claims for shortages.
   Claims for any defective Products must be made within thirty (30) days after receipt of Products by Buyer. Absence of such notice constitutes a waiver by Buyer of all claims for defects.
   Return Products Authorization. Granting Buyer the “Authority” to return Products will not be construed as the acceptance of the Products themselves or of all Buyer’s claim, but will only constitute “Authority” to physically return the Products so that they may be reinspected, and so that proper disposition of Buyer’s claim may be made after such inspection. DIMCOGRAY reserves the right to return the Products to Buyer, after such inspection, with no credit to Buyer, and with Buyer to bear all handling and transportation charges. “Authorization” to a Buyer to return Products requires the use of the least expensive mode of transportation available, unless otherwise specifically indicated on the Return Products Authorization. The maximum time period between the original shipment of the Products and the request for “Authority” to return Products by Buyer shall in no case exceed thirty (30) days. No replacement order will be processed until final disposition has been made for the returned Products by the DIMCOGRAY Quality Assurance Department. No credit will be given or accounting entry made until such final Quality Assurance disposition has been made by DIMCOGRAY.

11. Warranty and Exclusive Limited Remedy. DIMCOGRAY warrants only that all Products manufactured by it (but not by others) shall be within DIMCOGRAY’S standard limits of tolerances and variations or such limits of tolerances and variations as Buyer and DIMCOGRAY may agree upon in writing. DIMCOGRAY agrees to repair or replace any Products manufactured and sold by it which is returned by Buyer (subject always to Paragraph 9 hereof), transportation charges prepaid, and which examination by DIMCOGRAY proves not to be within the aforesaid limits of tolerances and variations, provided written notice of any such defect describing the same is given DIMCOGRAY within thirty (30) days from the date of shipment.

12. Disclaimer of Warranties and Limitation on Damages. THE RESPONSIBILITY OF DIMCOGRAY WITH RESPECT TO ANY SUCH DEFECT IN PRODUCTS SOLD IS LIMITED TO SUCH REPAIR OR REPLACEMENT AND DIMCOGRAY SHALL NOT BE LIABLE TO BUYER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER WITH RESPECT TO ANY SUCH DEFECTS.  WITHOUT IN ANY WAY LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF DIMCOGRAY UNDER ANY WARRANTY (EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES AGAINST INFRINGEMENT OF ANY PATENT, OR FOR ANY OTHER REASON WHATSOEVER ARISING OUT OF THIS SALE) EXCEED THE VALUE OF THE PRODUCTS SOLD HEREUNDER.  THE REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCTS SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY.
    DIMCOGRAY MAKES NO WARRANTIES REGARDING PRODUCTS MANUFACTURED BY IT OR BY OTHERS (INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES AGAINST INFRINGEMENT OF ANY PATENT), EITHER EXPRESS OR IMPLIED, EXCEPT AS PROVIDED HEREIN.

13. Patents. With respect to all Products for which Buyer furnishes the design as specifications, Buyer agrees to indemnify DIMCOGRAY and hold it harmless from all legal expenses which may be incurred by, and all damages and costs which may be assessed against DIMCOGRAY in any action or infringement of any foreign or domestic Patent by such Products sold hereunder. DIMCOGRAY will promptly inform Buyer of any such claims made against it and DIMCOGRAY will cooperate with Buyer in every reasonable way to facilitate the defense of any such claim. No license is granted or implied to any process patent owned, licensed or controlled by DIMCOGRAY, its subsidiaries or affiliates.

14. Tools and Dies. Unless otherwise specified in writing on the face of this Sales Contract, DIMCOGRAY shall retain title to and possession of any models, patterns, dies, molds, jigs, fixtures, and tools (hereinafter “Tools and Dies”) made for or obtained for use in connection with this Sales Contract.

15. Security Interest. As security for payment of all of the obligations evidenced by this Sales Contract, Buyer grants a security interest to DIMCOGRAY in the Products and proceeds of those Products, including but not limited to finished Products, work in progress, and accounts receivable.  To the extent that DIMCOGRAY does not have title to the Tools and Dies made for or obtained for use in connection with this Sales Contract, Buyer hereby grants DIMCOGRAY a security interest in these Tools and Dies to secure payment of all obligations evidenced by this Sales Contract.

16. Changes. DIMCOGRAY assumes no responsibility for any changes requested by Buyer in specifications relating to the Products purchased hereunder unless such changes are confirmed in writing by Buyer and accepted in writing by DIMCOGRAY. Any increase in price resulting from such changes shall become effective immediately upon DIMCOGRAY’S acceptance of such changes. Notwithstanding the foregoing, DIMCOGRAY reserves the right to modify the specifications of any Products subject to this Sales Contract, whether established by DIMCOGRAY or Buyer, providing that the modifications will not materially affect the performance of the Products.

17. Modification of Terms. This Sales Contract constitutes the final, complete and exclusive statement of representations made by DIMCOGRAY and DIMCOGRAY shall not be bound by any representations, promises or inducement of any kind unless set forth herein. This Sales Contract constitutes the entire contract between the parties and no waiver, alteration, or modification of any of the provisions of this Sales Contract shall be binding on DIMCOGRAY unless in writing and signed by a duly authorized representative of DIMCOGRAY and Buyer.

18. Assignment. Buyer may not assign the rights or duties under this Sales Contract without the prior written consent of DIMCOGRAY.

19. Disputes. All disputes which may arise during or from this Sales Contract shall be submitted for decision to a competent Court in Montgomery County, Ohio. However, DIMCOGRAY reserves the right to bring any claim it may have against Buyer before any other Court.

20. Waivers. No waiver by DIMCOGRAY of any breach of any provision hereof shall constitute a waiver of any other breach of any provision hereof.

21. Severability. Buyer agrees that should any provision of this Sales Contract be deemed to violate the law or is otherwise unenforceable, the remaining provisions shall continue to be valid and in full force and effect.

22. Legal Construction. The validity, construction and performance of this Sales Contract shall in all respects be governed by and interpreted in accordance with the laws of the state of Ohio, United States of America.

Revised Effective 1/3/08

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