Caliber Terms and Conditions 2011

  1. Pricing. Prices on the goods specified do not include any city, state, or federal excise taxes, including, without limitation, taxes on manufacture, sales, receipts, gross income, occupation, use, and similar taxes, fees, or other charges imposed by governmental entities.
  2. Co-op. Co-op arrangements are made on a case by case basis. All Co-op charges or programs must have preapproval.
  3. Catalog Fees: Any Catalog fees must be arranged prior to publication. Caliber reserves the right to pre-approval for any such fees.
  4. Terms of Payment. All terms are given based on credit approval. Special Credit terms will be determined at time of approval. Caliber reserves the right to reassess terms on delinquent accounts. All payments shall be due thirty (30) days after the date of Caliber’s invoice. All payments made after thirty (30) days from the date of the invoice will be subject to a service charge of one and one-half percent (1.5%) per month based on the outstanding balance. Payments past due of forty five (45) days are subject to stop ship. For any special order requiring Caliber to produce a custom made product, Buyer shall pay one-half of the total Order price upon delivery of its Purchase Order, and the remaining one-half of the total Order price within thirty (30) days of shipment, subject to approved credit.
  5. Cancellations. Buyer may not cancel an Order 30 days prior to delivery. Special orders are not subject to cancelation. Buyer may not cancel or change an Order without the written consent of Caliber. If Buyer desires to cancel or change an Order, Buyer must deliver a written request for cancellation of the Order. If Caliber consents to Buyer’s written request for cancellation of the Order Buyer shall pay to Caliber the percentage of the total Order price which equals the percentage of the Order completed by Caliber at the time of cancellation.
  6. Delivery and Risk of Loss. All shipments under the Order are F.O.B. Caliber’s warehouse or production facilities. All risk of loss shall pass to Buyer at that time regardless of the method of shipment. Buyer may elect preferred prepaid shipment method at time of order, which must be specified on order, or Caliber will ship with preferred competitive prepaid freight carriers. Shipping will be added as a separate charge on the invoice.
  7. Delays. CALIBER will not be liable for any delay in the performance of its obligations under the Order, or for any damages suffered by Buyer due to such delay, if the delay is, directly or indirectly, caused by a fire, flood, accident, civil unrest, act of God, war, governmental interference or embargo, labor strike, shortage of materials, or any other cause beyond Caliber’s control.
  8. Materials. The Order is conditional upon Caliber’s ability to obtain the necessary raw materials at a reasonable price, and all shipments under the Order are subject to Caliber’s supply schedules and any government regulations, orders, directives, and restrictions that may be in effect.
  9. Nonconforming Goods. Buyer shall inspect all goods upon tender and delivery by CALIBER, and should any of the goods be nonconforming goods, Buyer must notify CALIBER, in writing with photos, within Fifteen (15) days of Caliber’s tender and delivery of the goods describing the nature of any nonconformity. CALIBER shall have the right and option to repair or replace any nonconforming goods. If Caliber finds materials to be nonconforming, Caliber will pay shipping for returned and replacement goods.
  10. LIMITATIONS ON DAMAGES Caliber, Inc. shall not be liable for any special, incidental or consequential damages, including, but not limited to, lost revenues, lost profits, personal injury, damage to property, and third-party claims, arising out of any warranty, contract, statutory or tort. Notwithstanding the term of any limited warranty or any warranty implied by law, or in the event that any limited warranty fails of its essential purpose, in no event will Caliber’s entire liability exceed the purchase price of this product.
  11. Warranties. CALIBER will issue warranty obligations per each product/contract. Caliber, Inc. warrants that their product will be free from defects in material or workmanship under normal use, installation and service. Caliber, Inc. reserves the right, before having any obligation under this limited warranty, to inspect the damaged Caliber product. All warranty shipping costs for inspection shall be borne solely by the purchaser. This limited warranty is non-transferable.
  12. Special Orders. Products manufactured by CALIBER to meet Buyer's particular specifications or requirements, Buyer shall indemnify and hold CALIBER harmless from any and all claims arising from the purchase, use, or sale of the special goods, and from any related costs, attorneys’ fees, expenses, or liabilities incurred by CALIBER therefore.

12571 Oliver Ave Ste 600 • Burnsville, MN 55337 • 888-TRAXMAT

www.caliberproductsinc.com

Rev. 7/29/10

  1. Law and Procedure. The Order, this Agreement and the transaction described therein shall be subject to, construed under and enforced according to the laws of the State of Minnesota. ANY ACTION IN REGARD HERETO OR ARISING OUT OF THE TERMS AND CONDITIONS HEREOF SHALL BE INSTITUTED AND LITIGATED IN THE COURTS OF THE STATE OF MINNESOTA AND NO OTHER. IN ACCORDANCE HEREWITH, THE UNDERSIGNED HEREBY SUBMITS TO THE JURISDICTION AND VENUE OF THE COURTS WITHIN THE COUNTY OF MIDLAND, STATE OF MICHIGAN. BUYER AND CALIBER HEREBY WAIVE THE RIGHT TO A JURY TRIAL IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF THE ORDER, THIS AGREEMENT OR THE TRANSACTION DESCRIBED THEREIN.
  2. Remedies. In the event that Buyer is in default or otherwise breaches the Order or this Agreement, CALIBER shall be entitled to pursue any and all remedies, legal or equable including an action to recover the total Order price, as well as its costs of enforcing the Order, including, without limitation, its attorneys’ fees. In the event that CALIBER is in default or otherwise breaches the Order, the liability of CALIBER to Buyer for such breach or default shall be limited to the replacement value of the goods under the Order which is the sole and exclusive remedy of Buyer for any such breach or default.
  3. Entire Agreement. This Agreement is intended by the parties as a final expression of the terms and conditions of the Order. No representations, understandings, or agreements have been made or relied upon in the making of this Agreement other than those specifically set forth herein. This Agreement can only be modified in a writing signed by both parties. No previous course of dealing between the parties or trade usage may be used to interpret, limit, or otherwise impair the operation of this agreement.
  4. Waiver. CALIBER shall not be deemed to have waived any rights under this Agreement or the Order unless such waiver is given in writing and signed by CALIBER. No delay or omission on the part of CALIBER in exercising any right shall operate as a waiver of such right or any other right. A waiver by CALIBER of a provision of this Agreement or the Order shall not prejudice or constitute a waiver of Caliber’s right otherwise to demand strict compliance with that provision or any other provision of this Agreement or the Order. Neither prior waiver by CALIBER nor any course of dealing between Buyer and CALIBER, shall constitute a waiver of any of Caliber’s rights or of any of Buyer’s obligations as to any future transactions. Whenever the consent of CALIBER is required under this Agreement or the Order, the granting of such consent by CALIBER in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Buyer.
  5. Notices. All notices required to be given under this Agreement shall be given in writing and shall be effective when a record has been actually delivered, deposited in the United States mail, first class, postage prepaid, addressed to the party to whom the notice is to be given at the address shown upon the Order, received by telecopy or received through the Internet. Any party may change its address for notices under this Agreement by giving formal written notice to the other party, specifying that the purpose of the notice is to change the party’s address.
  6. Interest and Fees. In the event of any dispute arising out of the Order, this Agreement or the transaction described therein, in addition to an award of damages, the CALIBER shall be entitled to recover: (1) prejudgment interest on any amount awarded at a rate of one and one-half percent (1.5%) per month, (2) all expenses of litigation, including without limitation all filing fees and court costs; and (3) all attorneys’ fees incurred regardless of whether such fees or expenses are incurred before or after the initiation of litigation.

12571 Oliver Ave Ste 600 • Burnsville, MN 55337 • 888-TRAXMAT

www.caliberproductsinc.com

Rev. 7/29/10