Next Tool LLC Standard Terms and Conditions

Seller, by accepting this Purchase Order, agrees to the following Terms and Conditions:

1. Next Tool LLC. (“Purchaser”) recognizes that Seller may, for operating convenience, desire to utilize its own form of acknowledgment, contract or other document in connection with this transaction.  Acceptance of this Purchase Order, however, is expressly made subject to and conditional on Seller’s assent to the Terms and Conditions contained herein; and any shipment by seller of the goods or work subject to this Purchase Order, notwithstanding accompaniment by Seller’s own form of acknowledgement, shall be deemed as acceptance by Seller of each of the Terms and Conditions and shall not modify, alter or contradict in any manner the provision herein.  This Purchase Order is limited to the Terms and Conditions specified on the face and reverse sides of this Purchase Order and any attachment.  Purchaser does not agree to any proposed addition, alteration or deletion by seller.  These terms and conditions can be modified only in writing signed by Purchaser. Any failure to return the acknowledgement copy of this Purchase Order or any other statement or writing of seller shall not modify, alter, add to or otherwise affect these Terms and Conditions.
2. Pricing is inclusive of applicable taxes, freight, packaging, handling and all other charges, whether similar of dissimilar, unless otherwise indicated on the face of their Purchase Order.  Time is of the essence as to delivery and any other performance required of Seller.
3. This Purchase Order and these Terms and conditions contain the entire agreement between Purchaser and Seller and there are no prior or contemporaneous, oral, or written understandings or agreements binding on Purchaser affecting the subject matter of this Purchase Order other than those expressly referred to herein.  No agreement or other understanding in any way modifying these Terms and Condition resulting from the acceptance of this Purchase Order will be binding upon Purchaser unless made in writing and signed by an “Authorized Agent,” which means either (a) an authorized purchasing agent of Purchaser, or (b) an agent expressly authorized by such purchasing agent to modify these Terms and Conditions.
4. Seller represents and warrants that all goods and service subject of this Purchase Order shall conform to approved samples or specifications, if any, shall be merchantable and fit for their intended purpose, shall be new, not refurbished or reconditioned (unless otherwise indicated on the face of this Purchase Order), shall be free from defects in workmanship and materials, and are fit and safe for Seller’s intended use.  All such goods and services shall be subject to inspection and to rejection for breach of warranty by Purchaser within a reasonable time after receipt or completion, as the case may be, and without regard to whether payment has been made.  Seller shall not be entitled to cure any nonconforming tender without the prior written consent of an Authorized Agent.  The performance of all warranties shall survive and extend beyond delivery as to each item or service for a period of two (2) years from the delivery of such items.  All goods are sold by Seller with good title warranted and free and clear of any lien or encumbrance of any nature whatsoever.
5. Seller shall indemnity, defend, protect and hold harmless Purchaser, its direct and indirect partners, officers, agents and employees (collectively, the “Parties”) from liability of any nature or kind, arising from or by reason of any actual or claimed violation, infringement or misuse (including reasonable attorneys’ fees and cost and expenses of discovery and litigation) of any patent or other intellectual property rights, for or on account of any invention embodied in the goods supplied hereunder or used in the performance hereof, including the use or disposal of such goods by or on behalf of Purchaser; provided that such indemnity shall not encompass (a) violation, infringements or misuse of any patent or other intellectual property rights resulting from Sellers compliance with specific written instructions furnished by Purchaser, (b) where infringement is occasioned by the use of an apparatus patent due to the fabrication, installation or operation of apparatus in accordance with plans and specification furnished by others, or in operation of any process other than such process as may be inherent in the use of the goods supplied hereunder.  Purchaser shall promptly notify Seller in writing of any and all such claims of infringement that may be brought to Purchaser’s attention.  In case of litigation on account thereof, Purchaser shall assist Seller at Seller’s expense, except for the services of Purchase’s employees, in furnishing such evidence regarding the use of the patent of other intellectual property rights and other matters of fact that may be required by Seller in such litigation.
6. The failure or indulgence of Purchaser to insist on strict performance or observance by Seller of this Purchase Order or of those Terms and Conditions or of Purchaser’s rights in any one or more instances shall not constitute a modification of these Terms and Conditions or a waiver by Purchaser of such performance, conditions or rights.  Acceptance of any portion of this Purchase Order shall not in any way bind Purchaser to accept defective tender of any remaining portions thereof.
7. Seller represents and warrants that the goods herby sold were produced in compliance with (a) all applicable requirements of the Fair Labor Standards Act of 1938, as amended, (b) the regulations and orders of the Department of Labor; and (c) all other applicable federal, state and municipal laws, rules, ordinances and regulations
8. Seller represents and warrants that all goods furnished under this Purchase Order comply, to the extent applicable, with the Occupational Safety and Health Act of 1970.
9. Seller shall defend, indemnify, protect  and hold harmless the parties from and against any and all claims, actions and judgments resulting in injury or damage to persons or property (including death), loss or damage or claim and liability therefor (including reasonable attorney’s fees and costs and expenses of discovery and litigation) arising from the performance of this Purchase Order and the execution of the work or furnishing of the goods or service hereunder, unless it shall be established that the injury (or death) to person or property is the result of the sole negligence of Purchaser.  This indemnity shall survive delivery and acceptance of goods or services.
10. During the performance of this Purchase Order, Seller shall not discriminate against any employee or applicant for employment because of race, creed, color, gender, national origin or any other form of discrimination prescribed by law.
11. When labor of any kind is furnished pursuant to this Purchase Order, Seller shall provide evidence in the form of a Certificate of Insurance or a policy containing such insurance coverage’s as may be reasonably required by Purchaser naming Purchaser as an additional insured.
12. No officer, director, shareholder or employee of Purchaser shall be personally liable for the performance of any of Purchaser’s obligations under this Purchase Order.  Seller shall look solely to Purchaser for any liability of Purchaser and neither Seller nor anyone claiming by or through Seller shall look to any other assets in seeking to enforce obligations under this Purchase Order or to satisfy a judgment or award for failure to perform such obligations.  Furthermore, in no event shall Purchaser have any liability to Seller for punitive, special or consequential damages, such as, but not limited to, loss of profits or loss of use, even if Purchaser has been advised of the possibility of such damages.
13. This Purchase Order and the obligations of the partied hereunder shall be interpreted, construed and enforced in accordance with the laws of the State of Michigan, USA, except its choice of law rules.  The United Nations Convention for the International Sale of Goods (also referred to as the “Vienna Convention”) shall not apply to this transaction, even if otherwise applicable.  This Purchase Order shall be construed according to its fair meaning, and neither for nor against either party.
14. If a dispute or controversy arises under, out of, or in connection with or in relation to the Purchase Order, and any amendments hereof, or the breach thereof, and if the dispute cannot be settled through direct discussions, then the parties hereto agree to first endeavor to settle the dispute in an amicable manner by mediation, before having recourse to any other proceeding or forum.  Thereafter, any dispute or controversy arising under, out of, or in connection with or in relation to this Purchase Order, and amendments hereof, or the breach thereof, shall be determined and settled by arbitration to be held in the City of Belleville, County of Wayne, Michigan, USA, in accordance with the rules then in effect of the American Arbitration Association.  Any such arbitration shall be conducted by a single arbitrator, who shall be an attorney at law admitted to practice in Michigan, and who shall be selected by the Associate from its Commercial Panel of Arbitrators.  The award of the arbitrator shall be in writing and shall set out the reasons for making the award, shall be in accord with applicable law and supported by substantial evidence, and shall be binding and conclusive on all parties, and an award based thereon may be entered in the Circuit Court of the State of Michigan for the County of Wayne, or in any court of competent jurisdiction, and shall be final and binding on all parties provided, however, that the arbitrator shall have no authority to award punitive or other damages not measured by the prevailing party’s  actual damages, except as may be required by statute.  All cost (including without limitation arbitrator’s fees and attorneys’ fees) of the prevailing party (or parties) shall borne by the losing party; or in the event of a partial judgment for a party hereto, such costs shall be award in proportion to such partial judgment as determine by the arbitrator.  Notwithstanding the foregoing, nothing herein shall be construed to preclude either party from seeking provisional remedies, including with limitations temporary restraining orders and preliminary injunctions, from any court of competent jurisdiction, in order to protect such party’s rights under this Purchase Order pending arbitration (provided that no such provisional remedies shall be sought as a means of avoiding arbitration).  
15. If Seller claims excuse from performance under this Purchase Order by the occurrence of an event of force majeure, including, but not limited to labor trouble, fire, accident, war, shortages of supplies, power, or fuel which are the result of an occurrence beyond the control of Seller, such excuse shall extend only to the time Seller is so prevented from performance, and, on removal of the cause of such interruption, performance shall be resumed at the specified rate.