Buying from Us

Kurz-Kasch, Inc. Sales - Purchase Order Terms and Conditions

Kurz-Kasch, Inc. (“Seller”) shall only provide products or services to Seller’s customer (“Buyer”) expressly conditioned upon the acceptance of the following terms and conditions (these “Terms and Conditions”) by Buyer:  

1.        Quotation.  Quotations are dependent upon market conditions.  All quotations by Seller are subject to change or withdrawal without prior notice to Buyer unless otherwise specifically stated in the quotation.  If gauges are required, they must be furnished by Buyer and will be quoted separately.  Surface finish includes only such finish as can be obtained directly from the molding process and does not include polishing or buffing operation unless otherwise specifically stated in the quotation.  A mold set-up charge will be quoted on all orders for parts not carried as proprietary in-stock parts by Seller.  Charges will be quoted for any special boxing or packing requirements by Buyer.

2.        Acceptance.  No purchase order shall be binding upon Seller unless and until accepted in writing by Seller or by Seller commencing performance.  The terms or conditions of Buyer’s purchase order, work order, payment document or other similar instrument shall not be binding on either party and shall not be construed to amend, add to, delete from or supersede any provision of these Terms and Conditions. 

3.        Prices.  Prices are in U.S. Dollars and are subject to change without notice.  All orders are accepted upon condition that prices at time of delivery are subject to change as may be required to compensate for increase in labor, material and other costs. 

4.        Terms of Payment.   Production and prototype tool payment terms are:  33% due with tool purchase order; 33% due upon tool completion; and balance due within 30 days of receipt of samples.  Full production of the products shall begin only after all such production and prototype tool payments are paid in full and samples are approved in writing by Buyer.  Unless otherwise specifically agreed to by Seller in writing, all other terms of payment are 30 days net from the date of Seller’s invoice.  Any inspection rights granted to Buyer will not affect or alter the payment terms or the timing of Buyer’s payment obligations.  Under no circumstances will Buyer have a right of set-off.  Seller shall have the right to offset its payables against its receivables related to products or services purchased by Buyer and Buyer’s affiliates.  Any payment (whether disputed or undisputed) that is past due to Seller shall bear interest on the unpaid amount at the rate of 1.5% per month or the highest rate allowed by law (whichever is lower), prorated on a daily basis during the period in which it remains unpaid.  If Buyer fails to make any payment as required, Buyer agrees to indemnify Seller for all costs and expenses, including reasonable attorneys’ fees, court costs and associated expenses incurred by Seller to collect such payment.

5.        Credit Approval.  All shipments shall be subject to the approval of Seller’s credit department.  Seller may invoice Buyer and recover for each shipment as a separate transaction or if, in Seller’s sole judgment, the financial responsibility of Buyer is or becomes unsatisfactory, then Seller may, at its option and without prejudice to any of its other remedies, (a) defer or decline to make any shipments except upon receipt of satisfactory security or cash payments in advance, (b) terminate all orders of Buyer, or (c) declare all outstanding invoices immediately due and payable.

6.        Changing Orders.  Seller reserves the right to cancel any orders upon at least 30 days’ prior written notice.  Once Seller has either accepted an order or has begun performance with respect to such order, such order cannot be canceled, terminated or modified by Buyer except with Seller’s written consent. 

7.        Shipment.   All Products shall be shipped FCA (Incoterms 2000) Seller’s facilities and shall become the property of Buyer upon delivery to the carrier and receipt of full payment by Seller.  Buyer shall assume all risk and liability for loss, damage or destruction, as well as the results of any use or misuse by third parties who may acquire or use the products improperly after the delivery to the carrier.  Seller assumes no responsibility for insuring shipments unless specifically agreed to in writing by Seller and in which case the cost of insurance shall be for Buyer’s account.  Unless mutually agreed upon, shipping dates are approximate and are based upon prompt receipt of all necessary information.  Seller reserves the right to ship items in a single or multiple shipments.  A variance in quantity not to exceed 10% shall constitute the fulfillment of an order as to quantity.  Invoicing will be adjusted to reflect the actual quantity shipped.  If exact quantities are required, Seller must furnish a special quotation upon request by Buyer. 

8.        Inspection.  Seller grants Buyer the right to inspect products for a period of 15 days immediately following receipt (“Inspection Period”).  Any loss occasioned by damage or shrinkage in transit will be for Buyer’s account and claims for such loss shall be made solely against the carrier.  Buyer must notify Seller of any products that do not conform to the terms applicable to their sale within the Inspection Period, and afford Seller a reasonable opportunity to inspect such products and cure any nonconformity.  If Buyer fails to provide Seller with notice of nonconformity within the Inspection Period, Buyer shall be deemed to have accepted the products.  Buyer will have no right to return any products without Seller’s prior written authorization.  Any return authorized by Seller must be made in accordance with Seller’s then-current return policies and must be accompanied by a Returned Goods Authorization (“RGA”) from Seller.  Buyer will be responsible for all costs and expenses associated with any returns of products and will bear the risk of loss or damage of such products.  Seller may (in its sole discretion) reject any return of products not approved by Seller in accordance with these Terms and Conditions or otherwise not returned in accordance with Seller’s then-current return policies.

9.        Warranties.  SELLER MAKES ONLY THE FOLLOWING WARRANTIES TO BUYER (which Buyer may extend to only its first customer of such products).   

Seller warrants that each product shall be free from defects in material or workmanship at time of delivery to the carrier and each product shall perform in accordance with its written specifications (if any) for 6 months from the date of such delivery.  These warranties shall not extend to any product which upon examination by Seller is found to have been subjected to (a) mishandling, misuse, tampering, negligence or accident, (b) installation, operation or maintenance which either was not in accordance with Seller’s instructions or was otherwise improper, or (c) repair or alteration by anyone other than Seller.  Should any failure to conform to these warranties be discovered and brought to Seller’s attention within 6 months from the date such product is delivered to the carrier (“Warranty Period”) and be substantiated by examination by Seller, then Seller shall correct (at its own cost) such failure (at its sole option) by (y) repair or replacement of the non-conforming portion of such product, or (z) by return of the purchase price.  Buyer agrees that this remedy shall be its sole and exclusive remedy against Seller and that no other remedy shall be available. 

SELLER SHALL BE GIVEN A REASONABLE OPPORTUNITY TO INVESTIGATE ALL CLAIMS AND NO PRODUCTS SHALL BE RETURNED TO SELLER UNTIL AFTER INSPECTION AND APPROVAL BY SELLER AND RECEIPT BY BUYER OF AN RGA. 

PRODUCTS REPLACED OR REPAIRED BY SELLER IN AN EFFORT TO FULFILL ITS WARRANTY OBLIGATIONS HEREUNDER SHALL CARRY ONLY THE REMAINING UNEXPIRED WARRANTIES OF THE PRODUCTS ORIGINALLY DELIVERED AND ONLY FOR THE REMAINING WARRANTY PERIOD OF THE PRODUCTS ORIGINALLY DELIVERED.

THE SERVICE PROVIDED HEREUNDER ARE PROVIDED “AS IS”.  UNLESS OTHERWISE AGREED UPON IN WRITING BY THE PARTIES, IT IS BUYER’S RESPONSIBILITY TO ENSURE THAT THE PRODUCTS ARE PROPERLY DESIGNED, THAT RELEVANT SAFETY REGULATIONS ARE OBSERVED, THAT RELEVANT MATERIALS AND TEST PROCEDURES ARE PROPERLY SELECTED AND THAT SPECIFICATIONS ARE FREE FROM ERRORS AND OMISSIONS.    SELLER IS NOT RESPONSIBLE FOR THE DESIGN OF ANY PRODUCTS.  BUYER REPRESENTS THAT IT IS A SOPHISTICATED BUSINESS ENTITY CAPABLE OF EVALUATING THE DESIGN OF THE PRODUCTS.  ACCEPTANCE OF ANY PRODUCTS CONSTITUTES ACCEPTANCE OF THE DESIGN OF THOSE PRODUCTS AND A WAIVER OF ALL CLAIMS RESULTING FROM THE DESIGN OF THOSE PRODUCTS.

THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  BUYER IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER ANY PRODUCT IS FIT FOR A PARTICULAR PURPOSE AND SUITABLE FOR BUYER’S INTENDED USE OR CUSTOMER.  ACCORDINGLY, AND DUE TO THE NATURE AND MANNER OF USE OF THE PRODUCTS, SELLER IS NOT RESPONSIBLE FOR THE RESULTS OR CONSEQUENCES OF USE, MISUSE OR APPLICATION OF THE PRODUCTS BY ANYONE.  NO SAMPLE OR MODEL HAS BEEN MADE PART OF THE BASIS OF THE BARGAIN OR HAS CREATED OR AMOUNTED TO ANY EXPRESS WARRANTY THAT THE PRODUCTS WOULD CONFORM TO ANY SAMPLE OR MODEL.

THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THESE TERMS AND CONDITIONS.

10.     Limitation of Liability.  SELLER SHALL NOT BE LIABLE, AND BUYER WAIVES ALL CLAIMS AGAINST SELLER, FOR INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON SELLER’S NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION.  SELLER WILL NOT BE LIABLE TO BUYER FOR ANY LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY RESULTING FROM THE HANDLING, STORAGE, TRANSPORTATION, RESALE OR USE OF THE PRODUCTS IN MANUFACTURING PROCESSES, OR IN COMBINATION WITH OTHER GOODS OR OTHERWISE.  IN NO EVENT WILL SELLER’S LIABILITY UNDER THESE TERMS AND CONDITIONS OR IN CONNECTION WITH THE PRODUCTS OR SERVICES PROVIDED BY SELLER EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCTS OR SERVICES AS TO WHICH THE CLAIM IS MADE.  THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THESE TERMS AND CONDITIONS.

11.     Components.  Components and other raw materials obtained by Seller from third party suppliers and used in the products are not warranted by Seller.  If the components or raw materials carry a warranty from the third party supplier, Seller may extend same to Buyer if authorized by such third party supplier.  Components and other raw materials supplied by Buyer shall be delivered to Seller’s facilities, all charges prepaid, and the quantity delivered shall not exceed by 10% the number required to complete the order.  If gauges are required, they must be furnished by Buyer and will be quoted separately.

12.     Buyer’s Confidential Information.  If any information that Buyer discloses to Seller in connection with these Terms and Conditions is considered confidential or proprietary by Buyer, prior to disclosure of such information to Seller, Buyer shall conspicuously notify Seller of that fact, and Seller shall thereafter take reasonable precautions to protect Buyer’s interest therein.  Such precautions shall be conclusively presumed adequate and acceptable to Buyer unless Buyer shall request a written particularization of Seller’s intended precautions and objects to their adequacy prior to making disclosure of the information sought to be protected.  Such particularized precautions, if taken as furnished in writing to Buyer, shall be conclusively presumed adequate. 

13.     Seller’s Intellectual Property.  All designs (whether or not patentable), know-how, tooling (including tools, jigs, dies, fixtures, molds, patterns, taps, gauges, test equipment and manufacturing aids and replacements thereof) used in the manufacture of the products, specifications, formulas, developments, processes, software code, technical information, drawings or other information (collectively, “Intellectual Property”) related to the products or services provided to Buyer are the exclusive property of Seller, and all rights, title and interest in and to the Intellectual Property shall remain exclusively in Seller, notwithstanding Seller’s disclosure of any thereof to Buyer or Buyer’s payment to Seller for engineering or non-recurring charges.  Buyer shall not use or disclose any Intellectual Property to any party without prior written consent of Seller.  Buyer shall promptly return all Intellectual Property (in whatever form and any copies thereof) to Seller upon written request from Seller.  The provisions of this section shall survive the termination of these Terms and Conditions.  Seller is not responsible for keeping any Intellectual Property from which products have not been produced for a period of 3 years or in any event beyond reasonable normal life of such Intellectual Property.  Wear and tear of some of the Intellectual Property resulting from mechanical flow, whether or not affecting dimensions or quality of the molded part is beyond Seller’s control.  Therefore, Buyer shall be responsible for the costs of repairing or replacing such Intellectual Property and related tooling components (including, mold frames, cores, cavities, sprues, runners, transfer pots, pins, plating or texturing, gates and parting lines).

14.     Notice.  Any notice, consent or other communication required or permitted hereunder shall be in writing.  It shall be deemed given when (a) delivered personally, (b) sent by commercial overnight courier with written verification of receipt, or (c) sent by registered or certified mail, return receipt requested, postage prepaid, and the receipt is returned to the sender.  Such communications will be sent to Seller to the attention of its President at 2271 Arbor Blvd., Dayton, Ohio 45439.  Such communications will be sent to Buyer to the attention of its President at its billing address.

15.     Force Majeure.  Seller shall not be liable by reason of any failure or delay in the performance of its obligations due to strikes, shortages, riots, insurrections, terrorism, fires, floods, storms,  earthquakes, explosions, acts of God, war, governmental action, labor conditions, or any other cause which is beyond its reasonable control.

16.     Remedies.  Except as specifically provided herein, the remedies provided to the parties under these Terms and Conditions shall be cumulative and non-exclusive, and the parties shall be entitled to seek any other rights to which they may be entitled at law or in equity, subject to the terms of these Terms and Conditions.

17.     Entire Agreement.  These Terms and Conditions constitute the terms and conditions to the contract of sale and purchase between Seller and Buyer with respect to the products or services provided by Seller, and supersedes any prior agreements, understandings, representations and quotations with respect thereto.  Any modifications, revisions, amendments or addition to these Terms and Conditions must be set forth in writing signed by authorized representatives of both parties.  These Terms and Conditions shall not be supplemented or modified by any course of dealing or trade usage.  No failure of Seller to insist upon strict compliance by Buyer with these Terms and Conditions or to exercise any right accruing from any default of Buyer shall impair Seller’s rights in case Buyer’s default continues or in case of any subsequent default by Buyer.  If any provision herein shall be held to be unlawful or unenforceable, the remaining provisions herein shall remain in full force and effect.

18.     Dispute Resolution Process.  These Terms and Conditions shall be governed by and construed under the laws the State of Ohio, without regards to its conflicts of law principles, including the Ohio’s Uniform Commercial Code – Article 2 Sales and other Ohio laws, but not the United Nations Convention on Contracts for the International Sale of Goods.  All claims, demands, controversies, differences and other disputes that may arise between Buyer and Seller regarding any aspect of these Terms and Conditions or the products or services provided by Seller to Buyer shall be determined solely and exclusively by binding arbitration.  Each party hereby specifically waives their right to trial by judge or jury and agrees that all disputes shall be submitted to arbitration.  If a dispute is submitted to arbitration, the arbitration shall be conducted in English by the American Arbitration Association (“AAA”) under the commercial rules then in effect for AAA except as provided herein.  The arbitration shall occur in Dayton, Ohio.  The award rendered by the arbitrators shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and judgment on such award may be entered in any court having jurisdiction thereof.  The parties shall be entitled to discovery in connection with the arbitration.  Notwithstanding anything in this section to the contrary, either party may apply to the appropriate state or federal court of Montgomery County, Ohio for a temporary restraining order or preliminary injunction at any time.  Each party expressly consents to the jurisdiction of the federal, state and local courts serving Montgomery County, Ohio.  The denial of any application for a temporary restraining order or preliminary injunction shall not preclude a party from thereafter seeking a temporary restraining order or preliminary injunction from the arbitrators, nor shall the granting of a temporary restraining order or preliminary injunction preclude a party from thereafter seeking its dissolution by the arbitrators.  Any action by Buyer against Seller shall be commenced within 1 year after the cause of action has accrued.

19.     Miscellaneous.  Buyer shall pay to Seller, in addition to the invoiced prices, the amount of all fees, duties, licenses, tariffs and all sales, use, privilege, occupation, excise or other taxes, federal, state, local or foreign, which Seller is required to pay or collect in connection with the products or services provided to Buyer.  Failure by Seller to collect any such fees or taxes shall not affect Buyer’s obligations hereunder and Buyer shall fully defend, indemnify and hold harmless Seller with respect to such tax obligations. Buyer may not, directly or indirectly, use or refer to Seller (or its Intellectual Property or the products or services provided by Seller) in Buyer’s product literature or marketing campaigns without prior written consent from Seller.  Seller may engage subcontractors to provide certain of the products or services, but shall remain fully responsible for such performance.  Neither party may otherwise assign or transfer these Terms and Conditions or assign or delegate any of its rights, duties or obligations hereunder without the prior written consent of the other party, such consent not to be unreasonably withheld.  “Including” means “including without limitation” and does not limit the preceding words or terms.  The words “or” and “nor” are inclusive and include “and”.  Whenever the context shall require, each term stated in either the singular or plural shall include the singular and the plural.  The headings or titles preceding the text of the Sections are inserted solely for convenience of reference, and shall not constitute a part of these Terms and Conditions, nor shall they affect the meaning, construction or effect of these Terms and Conditions.  The provisions of this section shall survive the termination of these Terms and Conditions.

Selling to Us

Purchase Order Terms and Conditions

These purchase order terms and conditions will be applicable whenever a Kurz-Kasch operation or plant issues a purchase order to a supplier.

            Overriding Agreement – Acceptance by Seller of this purchase order from Kurz-Kasch, Inc. (“Kurz-Kasch”) for the herein enumerated items and/or services (“Products”), which purchase order is acknowledged hereby to be an offer to contract, is expressly conditioned upon the agreement of Seller that the provisions herein control the purchase order and further condition that any prior communications shall be construed as negotiations and merged into and superseded hereby.  No condition, different or additional provisions stated by Seller in any acceptance or acknowledgment of this purchase order shall be binding upon Kurz-Kasch unless expressly accepted by an authorized representative of Kurz-Kasch in writing.  Unless the context requires otherwise, the provisions hereof and the term “Order” when used herein, shall encompass this purchase order as well as a contract or agreement resulting from implementing this purchase order.  Unless otherwise provided herein, the written acceptance by Seller of this purchase order or the commencement of any work or the performance of any services hereunder by Seller (including work or services with respect to samples) shall constitute acceptance by Seller of the provisions of this Order.  No provisions other than those set forth in this Order (which Order includes any document attached to or incorporated by reference) shall be binding upon Kurz-Kasch unless accomplished in accordance with these terms and conditions.

            Delivery/Shipping – Unless otherwise specifically expressed in this Order:

1. Seller shall not fabricate any Products or procure any of the material required for same, or ship any Products to Kurz-Kasch, except to the extent authorized in written shipping and/or delivery schedules and/or instructions furnished by Kurz-Kasch.  Kurz-Kasch shall have no responsibility for Products for which such schedules or instructions have not been provided, the same may be returned to Seller and Seller shall pay all packaging, handling, storage and transportation expenses and all other expenses in connection therewith.  Kurz-Kasch from time to time may direct complete or partial suspension of such instructions and/or schedules without liability of, or expense to, Kurz-Kasch, except as expressed herein under Changes.
2. At Seller’s expense, Seller shall properly pack and mark each package with Kurz-Kasch’s purchase order number, part number, factory, plant and all in accordance with any applicable requirements of Kurz-Kasch and common carriers in a manner to secure lowest transportation costs.
3. Kurz-Kasch’s purchase order, part, and package numbers shall be shown on related packing slips, bill of lading and invoices.
4. No charge shall be made to Kurz-Kasch for packing, marking, drayage, storage or otherwise.
5. Seller shall describe Products on the bill of lading and other shipping receipts and shall route shipment in accordance with instructions issued by Kurz-Kasch.  If no shipping instructions are given by Kurz-Kasch, Seller shall call ordering plant,

            Price – If prices for Products are higher than specified initially by Kurz-Kasch in this purchase order, Seller must secure Kurz-Kasch’s written approval to any such increase prior to any contract being created. Seller warrants that the prices are no higher than are currently available from Seller to any other purchaser of Products.  No extra charges of any kind will be allowed unless specifically agreed to in writing by an authorized representative of Kurz-Kasch in advance.  All government imposed excise, manufacturing, sales use and similar taxes shall be the obligation of Seller, except where expressly stated herein and separately and conspicuously indicated on the invoice to be the obligation of Kurz-Kasch.  Any cash discount period shall be computed from the date of receipt by Kurz-Kasch of a complete and correct invoice, or Products, whichever is later.  On invoices returned for completion or correction, the cash discount period shall run from the date of Kurz-Kasch’s receipt of the completed or corrected invoice.  Unless freight, taxes, and other charges to Kurz-Kasch, if any, are itemized, any discount will be taken on the full amount of the invoices.  All payments are subject to adjustment prior or subsequent to being made, for a shortage, correction, or rejection.  A bill of lading must be included with shipment.

            Changes – Buyer reserves the right at any time to make written changes in any one or more of the following: (a) Specifications, drawings and data incorporated in this order; (b) methods of shipment or packing; (c) place of delivery; (d) time of delivery; (e) manner of delivery; and (f) quantities.

If any such change causes an increase or decrease in the cost of, or the time required for, performance of this order, Seller shall be entitled to claim an equitable adjustment in the price or delivery schedule, or both.  Any claim for adjustment under this article shall be deemed waived unless asserted within ten (10) days from the date of receipt by Seller of the change order; provided, however, that Buyer, if it decides in its sole discretion that the facts justify such action, may receive and act upon any such claim submitted at any time prior to final payment under this order.  Any claim by Seller for adjustment under this Article must be approved by Buyer in writing before Seller proceeds with such change.  Price increases shall not be binding on Buyer unless evidenced by a purchase order change notice or revision issued and signed by Buyer’s authorized representative.

            Delivery – Time is of the essence for this order unless Kurz-Kasch has expressly provided otherwise herein, delivery shall not be complete until Products have been received and accepted from the carrier at Kurz-Kasch’s receiving dock by Kurz-Kasch, notwithstanding any agreement to pay transportation and/or any other related charges.

            Non-Payment by Kurz-Kasch – Kurz-Kasch shall not be liable for failure to perform hereunder arising from causes beyond the reasonable control of Kurz-Kasch, including but not limited to labor disputes, and Kurz-Kasch may, in addition to its other rights set out in this Order, and whether or not such default is sufficient justification for Kurz-Kasch to have the option to terminate further performance hereunder, defer payment and/or other performance by Kurz-Kasch during any period in which Seller is in default hereunder.  The unjustified failure by Kurz-Kasch to pay any amount to Seller in accordance with this Order shall be actionable by Seller, and the Seller, as its sole, complete, and exclusive remedy may recover any such amount to which Seller is entitled.

            Termination at Option of Kurz-Kasch – Unless otherwise specifically expressed in the Order:

1. Ongoing performance of work hereunder may be terminated in whole or in part by Kurz-Kasch at its option for any reason sufficient in the sole business judgment of Kurz-Kasch at any time by written notice to Seller.  After receipt of such notice, Seller shall, unless otherwise directed by Kurz-Kasch, immediately terminate all work hereunder, and
   1. Terminate all orders and contracts relating thereto.
   2. Reasonably settle all claims arising out of such terminations.
   3. Transfer title and deliver to Kurz-Kasch (i) all completed work which conforms to the requirements hereof and does not exceed, in quantity, the amount authorized by Kurz-Kasch for production, and (ii) all reasonable quantities (but not in excess of amounts authorized by Kurz-Kasch) of work in process and materials produced or acquired in commencing performance of the work terminated which are of the type and quality suitable for producing Products which conform to the requirements of this Order and which cannot reasonably be used by Seller.
   4. Take all action necessary to protect property in Seller’s possession in which Kurz-Kasch has or may acquire an interest.
   5. Submit to Kurz-Kasch promptly, and in all events not later than three (3) months from termination (one month in the case of partial termination), Seller’s termination claim; provided, however, that in the event of failure of Seller to so submit, Kurz-Kasch may determine in good faith, notwithstanding the provisions of paragraph 2 hereof, on the basis of information available to it, the amount, if any, due Seller with respect to the termination, and such determination shall be final.
2. Upon termination by Kurz-Kasch under this captioned section, Kurz-Kasch shall pay to Seller the following amounts without duplication:
   1. The price herein for all Products completed and delivered in accordance with this Order and not previously paid.
   2. The actual and necessary incurred net (non-recoverable through mitigation by Seller) costs incurred by Seller properly allocable under generally accepted accounting principles and practices to the balance of the Products not provided for in (a) above, including work in process and raw materials: such costs to in no event include anticipated profits or exceed the price allocable to such balance of Products in the Order.
3. The provisions of paragraph 2 above shall not apply if, and for so long as, Seller is in default hereunder.

            Assignment – Seller shall not delegate its performance under this Order.  Seller shall not assign any interest in this Order or any payment due or to become due hereunder without first obtaining written consent from an authorized representative of Kurz-Kasch.  Whether Kurz-Kasch does or does not give its written consent to an assignment of any payment hereunder, Kurz-Kasch shall be entitled to assert against Seller, alone, in the absence of any assignment or against Seller and Seller’ assignees if any, all rights, claims and defense of every type arising from any cause whatsoever, within rights of setoff, recoupment, and counterclaim which Kurz-Kasch could assert against Seller or such assignee, whether acquired prior to or subsequent to such assignment.

            Compliance with Laws – In Seller’s performance hereunder, Seller shall comply with all applicable laws, ordinances, executive orders and regulations hereunder, and this Order shall be deemed to incorporate by reference all the clauses required thereby.

            Warranties and Cumulative Rights and Remedies – Seller warrants that Products and the materials and components incorporated therein shall be free from defects in material and workmanship; shall be merchantable and fit for such purposes and uses, if any, as specified by Kurz-Kasch; and that the design shall satisfy all requirements of any samples, drawings, and/or supplied to or by Seller in connection herewith.  Seller further warrants that all performance hereunder by Seller will be by careful efficient, qualified persons in the best and most workmanlike manner and will conform to the specifications and the highest standards applicable in the field.  These warranties shall continue notwithstanding any inspection, receipt, acceptance, or payment by Kurz-Kasch.  These warranties extend to Kurz-Kasch, its successors, assigns, customers, and users of its products.  Products not in conformity herewith, at Kurz-Kasch’s option and at no expense to Kurz-Kasch (1) may be retained by Kurz-Kasch at an equitable adjustment in price, (2) may be returned to Seller for repair, replacement, correction, credit, or refund as specified by Kurz-Kasch, or (3) may be corrected in place by Seller or by Kurz-Kasch, at Kurz-Kasch’s option, at Seller’s expense.  Seller assumes all risk of loss or damage to Products rejected by Kurz-Kasch while they are in Kurz-Kasch’s possession (excepting only Kurz-Kasch’s willful actions), and while they are in transit.  Defective or non-conforming Products shall not be replaced by Seller absent specific authorization from Kurz-Kasch.  Seller shall bear the transportation, handling, storage and related expenses of rejected Products, Seller shall, at its sole expense, indemnify, defend and hold Kurz-Kasch harmless from and against any and all claims made against Kurz-Kasch based upon relating to, or directly or indirectly, arising out of any claimed defects in Products or some other aspect of Seller’s performance hereunder.  It is understood and agreed that tender of non-conforming Products may substantially impair this entire Order and may cause Kurz-Kasch special damage.  Warranties, rights, and remedies provided Kurz-Kasch herein are not exclusive and are in addition to and cumulative with any other warranties, rights, or remedies provided by law or in equity.

            Seller’s Default – Should Seller fail or refuse to perform any provision of this Order, or should Kurz-Kasch reasonably conclude that the prospects of future performance by Seller hereunder is impaired, and in either event, same shall be a default by Seller hereunder and Kurz-Kasch may delay or terminate further performance, in whole or in part by Kurz-Kasch, without such termination or delay being a default by Kurz-Kasch hereunder, upon notice being given to Seller of such election.  Without limitation of the generality of the foregoing, any non-conformity in any lot or installment delivered hereunder shall constitute grounds for rejection by Kurz-Kasch of such lot or installment.  In addition, Kurz-Kasch may cancel the entire balance of the entire Order for any such non-conformity, without such cancellation being a default by Kurz-Kasch hereunder.

            Indemnification by Seller – Seller shall indemnify and hold Kurz-Kasch harmless from any loss, penalty, and/or damages, including but not limited to attorney fees resulting from or arising in connection with any default hereunder by Seller.

            Non-Waiver – Any waiver or failure of Kurz-Kasch to require strict compliance with any provision of this Order shall not be deemed to be a waiver of Kurz-Kasch’s rights to insist upon strict compliance in other respects or thereafter in the same respect.

            Friendly Assistance – No accommodation or attempted accommodation or other friendly assistance by Kurz-Kasch in respect to any business situation in which Kurz-Kasch may undertake or agree to undertake additional obligations beyond those legally required of Kurz-Kasch hereunder, shall be binding or enforceable upon Kurz-Kasch the extent performed by Kurz-Kasch nor shall any such action directly or indirectly result in a waiver of, change, or otherwise extend the terms hereof and the legal responsibilities of Kurz-Kasch of Seller in any manner whatsoever.

            Inspection and Testing – All Products are subject to inspection and testing at all times and places, either before, during, or after shipment, in accordance with procedures established from time to time by Kurz-Kasch.  Where rejection of non-conforming Products exceeds Kurz-Kasch’s established acceptable quality levels, Kurz-Kasch may conduct a 100% inspection and charge Seller the cost thereof.  Seller’s facilities for producing and furnishing Products shall at all times be subject to inspection by Kurz-Kasch.  Seller shall maintain complete and detailed records of all inspections and tests which shall indicate the nature and number of observations made, the number and type of deficiencies found, the quantities approved and rejected, and the nature of any corrective action taken.  Such records shall be available to Kurz-Kasch at all times, and unless otherwise agreed to in writing by an authorized representative of Kurz-Kasch, shall be retained by Seller for a period of at least five (5) years from the date of the last delivery hereunder.  The Seller shall have on file, subject to audit by Kurz-Kasch, adequate data showing the physical and chemical properties of all Products as well as components and raw material incorporated therein, and shall impose the same requirements on any subcontractors.

            Confidentiality, Inventions – All information furnished or made available by Buyer to Seller’s employees or subcontractors in connection with the items or services covered by this order shall be treated as confidential and shall not be disclosed by Seller, its employees and subcontractors to any third party either in whole or in part, without Buyer’s prior written consent.  Seller agrees that all designs, drawings, processes, compositions of material, specifications, or other technical information made or furnished by Seller in connection with the items or services covered by this order, including all rights thereto, shall be the sole and exclusive property of Buyer, free from any restriction, and Seller shall protect same against unauthorized disclosure to or use by any third party.  Seller agrees that, as to all inventions and improvements in such designs, drawings, processes, compositions of material, specifications, or other technical information made or furnished by Seller in connection with the items or services covered by this order, Seller will promptly identify and disclose such inventions or improvements to Buyer and execute or obtain the execution of any papers as may be necessary to perfect ownership of the inventions or improvements in Buyer or as may be necessary in the obtainment, maintenance, or enforcement by Buyer or any patent, trademark, copyright, trade secret, other proprietary right pertaining to the inventions or improvements.  The confidentiality provisions and the obligations of this paragraph shall survive termination or completion of this order.

            Confidential Information of Seller – If any information which Seller discloses to Kurz-Kasch in connection with this Order is considered confidential and/or proprietary by Seller, prior to disclosure Seller shall conspicuously notify Kurz-Kasch of that fact, and Kurz-Kasch shall thereafter take precautions to protect Seller’s interest therein, which precautions shall be conclusively presumed adequate and acceptable to Seller unless Seller shall request a written particularization of Kurz-Kasch’s intended precautions and shall object to their adequacy prior to making disclosure of the information sought to be protected.  Such particularized precautions, if taken, as furnished in writing to Seller, shall be conclusively presumed adequate, Seller’s sole option being to decline to disclose such confidential or proprietary information until such written particularization, if accomplished, is acceptable to Seller.

            Patents – Seller agrees to indemnify and hold harmless Kurz-Kasch, its successors, assigns, customers, and users of its products against any, and all liability, loss and expense (including but not limited to attorney fees and court costs) by reason of any claim, action or litigation arising out of any alleged or actual, direct or contributory infringement of patents arising from the purchase, use or sale of the Products.  In case the purchase, use or sale of the Products or any part thereof, is held to constitute infringement and/or is enjoined, Seller shall, at its own expense, procure for Kurz-Kasch, its successors, assigns, customers and users of its products, the right to continue the purchase, use and sale of the Products; or, with the approval of Kurz-Kasch, modify the Products so they become non-infringing; or remove the Products and refund the price and installation, transportation, and storage costs thereof.  If this order involves experimentation, research or development work, Seller agrees to grant to Kurz-Kasch an irrevocable, non-exclusive, and royalty-free license to make, have made, use, and sell any inventions resulting from work under this Order.

            Material Furnished by Kurz-Kasch – Unless otherwise expressly stated in writing, any material furnished by Kurz-Kasch in connection with order shall remain Kurz-Kasch’s property.  All such materials not used in the manufacture of Products shall, as directed, be returned to Kurz-Kasch at Seller’s expense, and if not accounted for or so returned shall be paid for by the Seller.  The furnishing of any material or other items by Kurz-Kasch shall in no way release Seller from Seller’s obligations hereunder.

            Special Tooling – All special dies, tools, patterns, designs, drawings, materials, information, and/or equipment directly or indirectly used in the furnishing of Products; either furnished or paid for by Kurz-Kasch or purchased from funds furnished by Kurz-Kasch as allocated on Seller’s books, belong to and shall be the property of Kurz-Kasch, and shall not be used by Seller for the benefit of any other entity, and may be removed by Kurz-Kasch at any time.  All such items while in the possession of Seller shall be maintained and cared for at Seller’s expense and Seller shall bear the risk of loss and damage to same.

            Notice – Any notice required or permitted to be given to Kurz-Kasch hereunder shall be sufficient if received by Kurz-Kasch’s Purchasing Agent at the address first above written.  Any notice required or permitted to be given to Seller shall be sufficient if sent to Seller at the address first above written.  Either party hereto may change its address for notice purposes by written notice to the other party.

            Captions – Captions on sections of these terms and conditions are inserted only for convenience and reference, and shall not be construed to limit the scope or intention of any provision thereof.

            Limitation of Actions – Any action for Kurz-Kasch’s alleged breach of the agreement created hereby must be commenced written twelve (12) months after occurrence of the facts alleged to constitute a breach.

            Errors – Errors in the non-printed portion thereof other typographical or clerical are subject to correction by Kurz-Kasch.

            Severability – If any clause hereof is determined to be contrary to law, unconscionable, or otherwise unenforceable by any third party with authority to make a binding determination, the clause in question shall be modified in its effect only to the extent necessary to bring it within the minimum standard required, and if so modified the clause shall remain binding upon the parties.  The remaining provisions of this instrument shall not be affected by such modification.

            Controlling Law – This transaction shall be construed according to the laws of the state in which Kurz-Kasch’s receiving point is located as indicated by the address on the face of this Order.