Badger Alloys, Inc. Terms and Conditions of Sale

All products are sold subject to the following Terms and Conditions:

Acknowledgement – Controlling Provisions

Badger Alloys, Inc. (“BADGER”) acknowledges the order of addressee of this acknowledgement (“Customer”) and both parties expressly agree to sell the goods described in such order [or the quotation this accompanies] only on the terms hereof (as well as the terms of documents specifically referenced herein) (collectively, the “CONTRACT”), notwithstanding any language of Customer’s purchase order, if any, or other writing previously or hereafter received by BADGER purporting to amend, modify, or replace the terms of this acknowledgement with any different or additional terms or reciting that states that any action or inaction by BADGER constitutes agreement to additional or different terms. Further, there shall be no oral modification of this Contract.

Incorporated Documents

This document expressly incorporates all provisions of the BADGER quote agreed to by the Customer, the BADGER Quote Terms and Conditions, and the BADGER Supply Agreement.

Warranty or BADGER

(a) BADGER warrants that its products, so far as they are of BADGER’s manufacture, will conform to the specifications agreed to by BADGER and Customer and will be free of defects in materials and workmanship on the date of delivery. If BADGER reasonably determines that its product fails to conform to the specifications agreed to by BADGER and Customer, BADGER shall remedy the nonconformity. For the purposes of this document, “remedy the non-conformity” shall include: (1) repairing the non-conforming product; (2) replacing the nonconforming product; or (3) issuing credit in an amount not to exceed the purchase price of the non-conforming product. BADGER reserves the right to determine which of the three methods above shall be used to remedy the non-conformity.

(b) On products furnished by BADGER, but manufactured by others, the written warranty of the manufacturer, if any, will be assigned to Customer. However, BADGER does not adopt and does not guarantee or represent that the manufacturer will comply with any of the terms of such warranty.

(c) All claims of rejection must be made in writing by Customer within 45 days after receipt of goods from BADGER if credit is to be allowed or products are to be reworked or replaced. Responsibility for property protection of products returned for rework is that of Customer. If BADGER determines returned product is a valid claim against BADGER’s warranty, BADGER will be responsible for freight charges or else freight costs shall be borne by Customer.

(d) THE WARRANTIES AND REMEDIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES WHATSOEVER, WHICH ARE HEREBY DISCLAIMED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT.

Warranty of Customer

(a) Customer shall indemnify and hold harmless BADGER from any loss, liability, or expense arising out of an actual or alleged infringement of any patent, trademark, or other proprietary right relating to the manufacture and sale of products manufactured in accordance with patterns, designs, alloy specifications, or design information supplied by Customer.

(b) Customer shall indemnify and hold harmless BADGER from any loss, liability, or expense arising out of Customer’s refusal to accept product furnished by BADGER that conforms with the specifications agreed to by BADGER and Customer.

(c) Customer shall indemnify and hold harmless BADGER from any loss, liability, or expense arising out of Customer’s changes to specifications agreed to by BADGER and Customer.

(d) Customer shall indemnify and hold harmless BADGER from any loss, liability, or expense arising out of Customer’s unauthorized changes or modification to the products furnished hereunder.

Tools and Equipment

If special gauges, fixtures, patterns, drawings or other tools or equipment are required (collectively, “Customer’s Tools”), they will be furnished by Customer.  Customer’s Tools may be removed by Customer after our fulfillment of this Agreement provided Customer’s account and all fees, taxes and charges are paid in full. BADGER shall have no responsibility or liability for errors in Customer’s Tools, which may be furnished to it by Customer. BADGER shall not be liable for damages to Customer’s Tools except those due to BADGER’s negligence. All Customer’s Tools, if any, furnished to BADGER by Customer will be stored by BADGER with all reasonable care without liability for their loss caused by theft, fire, flood, acts of God (including pandemics and similar occurrences), or other causes beyond its reasonable control. Any unpaid account for invoiced parts or casting work shall constitute a lien on any of Customer’s Tools in our possession. Patterns on which partial refunds are made become BADGER’s property. Patterns are to be furnished by Customer. Prices are for rough castings only unless specifically noted otherwise and are contingent upon rigging to BADGER’s specification. Machining stock allowance should be approved by BADGER to guarantee clean up.

BADGER agrees to hold patterns on Customer’s behalf free of charge for patterns with activity against that equipment. Patterns that remain idle are subject to return, storage fees or destruction with appropriate notice from BADGER.

Inserts and Materials

Any inserts and materials provided by Customer used in the production of the products must be supplied in excess of purchase order quantity in order to account for production fallout and shall be delivered FOB to BADGER’s facility in Milwaukee, Wisconsin, all charges paid.  Any inserts are subject to approval of design by BADGER and must be uniform, accurate and free from burrs, loose particulate, grease and oils.  BADGER shall have no liability for damages to castings or tools caused by defective inserts or for casted parts in which inserts were furnished by Customer and found detective after casting.]

Additional Services.

Any samples submitted by BADGER shall be deemed approved if a written notice of rejection is not received by BADGER within 14 days after submission to Customer.  Unless specifically stated in the quotation, no post-casting operations are included and the finish includes such polish as is obtained directly from the casting process.

Prices and Taxes

All orders are accepted with the understanding that BADGER reserves the right to adjust prices to BADGER’s prices prevailing at the time of shipment. In addition to the prices specified, Customer shall pay any taxes levied on the sale, delivery, storage, consumption, or transportation of goods sold. Prices stated herein do not include any taxes, charges, assessments, or duties, and the amount of any thereof which BADGER is required to pay or collect shall be invoiced to and payable by Customer. Customer shall also pay any collection fees and reasonable attorneys’ fees incurred by BADGER in collecting payment of the purchase price and any other amounts for which Customer is liable under the terms and conditions hereof. Prices stated hereon are believed to comply with applicable price regulations. If it is later determined to be otherwise, appropriate adjustments will be made in BADGER’s sole discretion.

Storage Fees; Stocking Customers

If Customer causes a delay in the delivery or shipment of the products, customer may be charged a storage fee by BADGER.  If BADGER’s quotation for such products indicates customer is a “Stocking Customer,” BADGER will retain the agreed upon stock of products at the specified storage fee rate, and if Customer should terminate or obsolete a product, Customer shall be liable for the remaining inventory of such product, engineering and materials costs incurred by us in relation to such product and restocking charges for materials purchased in relation to such product.]

Terms of Payment

Payment terms are net thirty (30) days of completion of production. Outstanding balances not paid when due shall be subject to a late charge accruing at the rate of the lower of eighteen percent (18%) per annum or the maximum interest allowable under applicable state law on any late payments due hereunder. Failure to timely pay shall cause all subsequent invoices to become immediately due and payable. Payment shall be made in U.S. Dollars ($), unless otherwise agreed by BADGER and Customer.

Delivery and Acceptance

(a) Dates quoted hereon are approximate and are based upon proper receipt of all necessary information and materials to be furnished by Customer. All sales are EXW shipping point. The acceptance of shipment by first class carrier shall constitute a delivery to Customer. BADGER shall not be liable for any delays or defaults hereunder by reason of fire, flood, acts of God (including pandemics or similar occurrences), labor, troubles, inability to secure materials, acts of government, or other causes beyond its reasonable control. BADGER shall not be liable for direct, special, or consequential damages resulting from delay in delivery or failure to manufacture.

(b) Products shall not be subject to acceptance or rejection on a basis of radiographic, magnetic particle, dye penetrant, or any other testing unless expressly stated in BADGER’s quotation.

(c) Customer’s receipt of any goods shall be an unqualified acceptance of, and a waiver by Customer of any kind and all claims with respect to, such products on the earliest to occur: (i) failure of BADGER to receive written notice of rejection within 45 days of their receipt by Customer; or (ii) any other event constituting acceptance by Customer under applicable law. However, the Customer’s objections to the terms and conditions of sale as stated in this document shall not be a basis for the rejection of BADGER’s goods or for the Customer’s basis for any claims against BADGER as to its products. The Acknowledgement paragraph contained in this document controls and governs the terms and conditions of sale and is not waived by this paragraph.

Customer Returns

Customer must obtain from BADGER prior authorization before returning product to BADGER’s location. Such authorization will not be unreasonably withheld. BADGER reserves the right to make a preliminary determination regarding the Customer’s claim against BADGER’s warranty. Products not first receiving a Return Authorization (RA) from BADGER’s Customer Service agent will not be accepted at BADGER’s location.

Cancellation

Cancellation of any order, or any part thereof, shall be subject to all of the following terms: Customer shall pay the contract price of all goods or services which have been completed. Additionally, Customer shall pay the contract price of all goods or services currently in process. Customer shall pay a sum equal to the same proportion of the contract price as the degree of completion of the goods or services in process on the date cancellation is received. Termination charges on government contracts and subcontracts will be determined in compliance with applicable laws and regulations.

Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL BADGER BE LIABLE FOR INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OR EXPENSES OF ANY KIND, INCLUDING LOSS OF INCOME OR PROFITS OR GOODWILL, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR WITH THE USE OR DELIVERY OF PRODUCTS FURNISHED HEREUNDER. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES WILL BADGERS TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE SALE OF ANY PRODUCT BE GREATER THAN THE AMOUNT ACTUALLY PAID FOR SUCH PRODUCT GIVING RISE TO THE LIABILITY.

Shipping Tolerance and Packing

BADGER reserves the right to ship, plus or minus ten percent, the specified quantity unless otherwise specified on the purchase order. Unless Customer specified otherwise in writing, products will be packed as BADGER may deem proper for protection against normal handling, and extra charges will be made for additional protection of goods.

Credit Approval

Shipments, deliveries and performances of work shall at all times be subject to the approval of BADGER’s credit department. BADGER may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment in advance or upon such other payment terms as are acceptable to BADGER’s credit department.

Proprietary Rights

Customer acknowledges and agrees that it is not acquiring any right, title or license in or to BADGER’s intellectual property or other proprietary rights associated with any of the Products.

Assignment; Binding Effect

Customer shall not assign its rights or obligations under this Agreement or any interest therein without BADGER’s prior written consent. Any assignment without such consent shall be void and have no force and effect. This Agreement shall be binding and inure to the benefit of the parties hereto, their successors and permitted assigns, and their legal representatives.

Controlling Law; Jurisdiction; Language

This Agreement and the rights of the parties hereto shall be governed by, construed and enforced in accordance with, the laws of the State of Wisconsin without regard to any conflicts of laws principles. The parties agree that all actions or proceedings arising out of or in connection with this Agreement shall be brought within the state or federal courts located in the County of Milwaukee in the State of Wisconsin and each party hereby waives their right to contest the jurisdiction of such courts.

Compliance with Export Regulations

Commodities or technology exported from the United States are in accordance with the Federal laws and regulations. Customer understands and agrees that diversion of commodities or technology contrary to U.S. law is prohibited.

Miscellaneous

(i) No provision of this Agreement may be amended or waived except in a writing signed by BADGER and Customer; (ii) a waiver of a breach shall not operate or be construed as a waiver of any subsequent breach; (iii) BADGER may set off any amount due from Customer, whether or not under this Agreement, against any amount which may become due to Customer, whether or not under this Agreement; (iv) if any provision, clause or part, or the application thereof is held invalid, the remainder of this Agreement or the application if such provision, clause or part under other circumstances shall not be affected thereby; and (v) this Agreement may only be amended in writing signed by both parties hereto.