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Marshall E Campbell Company Terms and Conditions

1. Applicability. These Terms and Conditions of Sale (“Terms”) shall apply to the sale of any goods, materials, services or work product (“Products”) by Marshall E Campbell Company (“Campbell”) to the Customer thereof (“Customer”). Except to the extent otherwise expressly agreed in writing signed by an authorized officer of Campbell, these Terms and the order, quote or proposal in which they are referenced or to which they are attached (together, this “Agreement”) constitute the entire agreement between Customer and Campbell regarding the Products. Customer shall also be bound by the applicable provisions of any terms and conditions of the original manufacturer or service provider of the Products (“Supplier”). CAMPBELL HEREBY EXPRESSLY OBJECTS TO, AND SHALL NOT BE BOUND BY ANY OTHER TERMS OR CONDITIONS ON CUSTOMER’S PURCHASE ORDER, CONFIRMATION OR OTHER DOCUMENTS WHETHER SUBMITTED BEFORE OR AFTER THESE TERMS. SHIPMENT OR OTHER PERFORMANCE BY CAMPBELL SHALL NOT CONSTITUTE ASSENT TO ANY INCONSISTENT TERMS AND THESE TERMS SHALL TAKE PRECEDENCE OVER ANY OTHER TERMS.

2. Prices. Prices on Campbell’s website are subject to change without notice. Prices and discounts quoted by Campbell in writing are firm for the period of time (if any) set forth in the quote. Prices are subject to increase by Campbell for any change to the Order made by Customer which is approved in writing by Campbell. All prices are quoted in U.S. dollars. Campbell reserves the right to pass on any surcharges or impose purchase restrictions or limits at any time.

Customers that have other pricing arrangements with Campbell can view their prices and the applicable prices to which discounts, if any, are applied, when logged into their mecampbell.com account. Export orders may be subject to other special pricing.

3. Right to reject or refuse. Campbell reserves the right to refuse or reject any order at their sole discretion. Customer will be notified of the refusal or rejection as soon as possible. All rejections or refusals will take place prior to product being shipped. Any prepayment or preauthorized credit card charges will be refunded or voided. Campbell is under no obligation to explain its reasons for refusing or rejecting an order.

4. Taxes and Fees. Prices stated herein do not include any taxes, charges, assessments or duties. The amount of any such taxes, charges, assessments or duties which Campbell 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 Campbell in collecting payment of the purchase price and any other amounts for which Customer is liable under this Agreement.

5. Freight Policy. Prices are F.O.B. origin, freight prepaid to destination specified in the order. Campbell charges a shipping and handling fee on each order which is applied at time of order and reflected on Customer’s invoice. Receipts for shipping and handling charges will not be furnished. For Customers with an established Campbell account and their ship to location is within Campbell’s trading area, all standard orders are freight allowed (i.e.-free freight). On these standard deliveries to Customers with an established Campbell account, and within Campbell’s trading area, it is Campbell’s prerogative on how the Customer’s order will be shipped but most likely it will be made via Campbell’s fleet of delivery trucks. Campbell’s trading area is southeastern Michigan and is indicated at checkout time by a Campbell delivery truck drop down selection. For Customers outside of Campbell’s trading area orders over $100 (including any backorders) are shipped free freight for standard parcel delivery. COD shipments are not permitted. Products that are too large for parcel delivery and do not qualify for the $100 free freight terms will have a separate line entry after the item on the cart which will state- “special oversize shipping charge” and the amount of the charge will be indicated. Other terms and conditions may apply for other than standard ground delivery ("Other Freight Services"), including without limitation, expedited same day delivery, less than truckload (LTL) shipments, air freight, freight collect, export orders, hazardous materials, Customer's carrier, shipments outside the contiguous U.S. or other special handling by the carrier. Any charges incurred for Other Freight Services must be paid by Customer. Fuel surcharges may be applied. Title and risk of loss pass to Customer upon tender of shipment to the carrier. Campbell will provide estimated delivery times based on inventory and the schedules provided by Freight Services. However, the estimated delivery times are not guarantees and Campbell will not be liable for any variations from estimates regardless of the cause. If the product is damaged in transit, Customer's only recourse is to file a claim with the carrier.

Hazardous materials require special handling, are not service level guaranteed and may be subject to local, state and federal regulations which may delay or prohibit shipments. Hazardous materials will not be shipped to Alaska or Hawaii or exported outside of the contiguous United States.

6. Services. With respect to the portion of Products comprising the sale of services, Customer shall: (i) cooperate with Campbell and Supplier in all matters relating to the services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested for the purposes of performing the services; (ii) respond promptly to any request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary to perform the services; (iii) provide such customer materials or information as reasonably requested to carry out the services in a timely manner and ensure that such customer materials or information are complete and accurate in all respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the services.

7. Acceptance; Returns. Customer will have five business (5) days after delivery of the Products to inspect the Products and to provide written notice to Campbell of any defects or nonconformity. If Customer does not notify Campbell during this period, the Products shall be deemed accepted by Customer, and Customer shall be deemed to have waived all claims based on any defects that were or would have been discovered upon reasonable inspection during such period (except any claim under a Supplier Warranty, as defined in Section 9, shall not be deemed waived). Any claims for damage, non-conformity, shortages or errors must be made in writing promptly following discovery thereof, specifying the non-conformity in reasonably detail. Special orders are non-returnable and non-refundable. Campbell shall not be required to accept any return made without the prior written authorization of Campbell, and no credit will be allowed for Product returned without prior written authorization from Campbell. A restocking fee may be assessed on all returned stock material. Returns will be further subject to Campbell’s return policy then in effect.

8. Payment and Credit Terms. Campbell accepts cash, checks, money orders, Visa, MasterCard, and American Express. For Customers with established Campbell credit, payment terms are net thirty (30) days from the date of shipment or pick-up of products. Campbell’s preferred method for Customer’s payment is via Electronic Funds Transfer (“EFT”) or American Clearing House (ACH) electronic transfer. All credit extended by Campbell and the limits of such credit, is at Campbell’s sole discretion, and may be reduced or revoked by Campbell at any time, for any reason. As a condition for the continued extension of credit, Customer agrees to provide Campbell with current credit information. Campbell reserves the right to charge the Customer a convenience fee for credit card payments on an open account. Campbell further reserves the right to charge Customer a late payment fee at the rate of one and one-half percent (1-1/2%) of the amount due for each month or portion thereof that the amount due remains unpaid, or such amount as may be permitted under applicable law. Anticipation and cash discounts are not allowed. Export orders are subject to special export payment terms and conditions identified in Section III. All payments must be made in U.S. dollars. Campbell has the right of set-off and deduction for any sums owed by the Customer to Campbell.

If the Customer fails to make payment within thirty (30) days of shipment or pick-up, or fails to comply with Campbell’s credit terms, or fails to supply adequate assurance of full performance to Campbell within a reasonable time after requested by Campbell (such time as specified in Campbell's request), Campbell may defer shipments until such payment or compliance is made, require cash in advance for any further shipments, demand immediate payment of all amounts then owed, elect to pursue collection action (including without limitation, attorneys’ fees and any and all other associated costs of collection), and/or may, at its option, cancel all or any part of an unshipped order. If Customer fails to comply with these payment terms, Campbell may, at its sole discretion, and without notice, immediately terminate any agreements it has with Customer. Upon such termination all amounts owed by Customer to Campbell shall become immediately due and payable.

Campbell has the right, at any time and in its sole discretion, to immediately change the terms of any credit extended to Customer if: (i) there is a material change in Customer’s financial capability or creditworthiness; (ii) Customer enters into or signs an agreement regarding any Change of Control; or (iii) a trustee, receiver or examiner is appointed for Customer or its affiliates or subsidiaries or Customer’s plan of reorganization is confirmed by a U.S. Bankruptcy Court. “Change of Control” means any (x) sale, lease, or other disposition of all or substantially all of Customer’s assets; (y) transaction or series of related transactions (by stock sale or otherwise) in which any person or entity becomes the beneficial owner, directly or indirectly, of more than 50% of Customer’s voting control; or (z) merger or consolidation involving Customer. Additionally, Customer, and each of its subsidiaries and affiliates, agrees to provide to Campbell proper authorization necessary for Campbell to request any financial information from third parties.

Customer hereby unconditionally guarantees payment as a primary obligor of, as provided herein, all purchases made by Customer, its subsidiaries and affiliates. Each of Customer’s subsidiaries and affiliates purchasing from Campbell are jointly and severally liable for all purchases made by Customer and its subsidiaries, and Customer is also acting as agent for such subsidiaries and affiliates. Customer further agrees to defend, indemnify and hold harmless Campbell from any and all claims, injuries, damages, losses or suits, including, without limitation, attorneys’ fees and costs, arising out of, or in connection with any attempt to disgorge or recover payments to Campbell made on behalf of Customer by a subsidiary and affiliate on the grounds that such payment was improper, unauthorized, or constituted a fraudulent transfer.

All Customers with an open line of credit will formally designate in writing a person or persons as the administrator of their account who are authorized to act on behalf of the Customer. This administrator(s) is responsible for maintaining the list of people within their organization who are authorized to place orders on the Customer’s account and otherwise make binding commitments on behalf of the Customer. The administrator(s) is responsible for immediately communicating in writing any changes to the list. Changes to the list of authorized persons shall only be effective upon receipt of the notice by Campbell. Credit limits per Customer employee will also be determined by the administrator and must be communicated to Campbell in writing. The Customer shall be liable for any orders placed by individuals who are authorized to place orders.

9. Credit Balance. Customer agrees that any credit balance(s) issued by Campbell must be used within one year from the date the credit was issued and may only be used for purchases of products. Any unused credit or portion thereof will automatically expire after one year, or be processed pursuant to applicable state law.

10. Limited Supplier Warranty. Customer shall have the benefit of any warranty, guarantee or commitment extended directly by the applicable Supplier to Customer (each a “Supplier Warranty”). Copies of any applicable Supplier Warranty shall be made available to Customer upon request. Customer’s sole remedy for any defective or non-conforming products shall be as set forth in the applicable Supplier Warranty. Customer acknowledges that Campbell is an independent contractor, reselling the Supplier’s Products for Customer’s own account. Campbell is not an agent of any Supplier, and no Supplier is authorized to commit or bind Campbell in any way. Campbell shall not be responsible for any post-sale warranty repair or technical support obligations of Supplier. Campbell may facilitate and assist Customer and Supplier in processing any warranty claims without assuming such obligations. Notwithstanding the foregoing, to the extent Campbell directly performs services hereunder (and such services are not performed by Supplier or any other third party), Campbell warrants to Customer that it shall perform such services using personnel of required skill, experience and qualifications and in a professional and workman like manner in accordance with Campbell’s standard practices. Campbell shall not be liable for a breach of the foregoing services warranty unless: (i) Customer gives written notice of the defective services, reasonably described, to Campbell within five (5) business days of the date the Customer received the services; (ii) Campbell reasonably verifies Customer’s claim that the services are defective; and (iii) Customer followed Campbell’s instructions related to such services. Subject to the foregoing, with respect to any services subject to Campbell’s services warranty in this Section, Campbell shall, in its sole discretion, repair or re-perform the applicable services, or credit or refund the price of such services at the prorate contract rate. THE SUPPLIER WARRANTY AND DISTRIBUTOR SERVICES WARRANTY ARE THE EXCLUSIVE WARRANTIES APPLICABLE TO THE PRODUCTS, IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT.

11. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL CAMPBELL BE LIABLE TO CUSTOMER OR ANYONE CLAIMING UNDER CUSTOMER FOR ANY AMOUNT IN EXCESS OF THE PRICE ACTUALLY PAID BY BUYER FOR THE PRODUCTS, OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES OR EXPENSES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF INCOME, PROFITS OR GOODWILL, WHETHER ARISING IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR UNDER ANY OTHER THEORY OF LIABILITY.

12. Proprietary Rights. Customer acknowledges and agrees that it is not acquiring any right, title or license in or to Campbell’s or the applicable Supplier’s intellectual property or other proprietary rights associated with any of the Products. Any software, firmware, applications, code or data incorporated into the Products may be subject to Customer’s acceptance of separate license agreements with Campbell or the applicable Supplier thereof. Customer shall not use, disclose, modify, transfer, sublicense, disassemble, decompile, reverse engineer such software, firmware, applications or data, except as expressly provided in the applicable license agreement.

13. Indemnification. Customer agrees to indemnity, defend and hold harmless Campbell, its affiliates, and their respective shareholders, members, directors, managers, employees, agents and representatives (collectively “Representatives”) from any claim, demand, action, cause of action, judgement, damages, cost, expense, liability of loss (including, without limitation, reasonable attorney’s fees) arising out of any: (i) use, ownership, maintenance, transfer, transportation or other disposition of the Products by Customer; (ii) breach or violation of this Agreement on the part of Customer; or (iii) negligent act or omission, intentional misconduct or violation of applicable law on the part of Customer or its Representatives. Campbell’s remedies under these terms and conditions are cumulative and in addition to any other remedies available to Campbell at law, in equity, by contract or otherwise.

14. Cancellation, Modification or Suspension. Campbell shall use reasonable efforts to accommodate any cancellation, modification, suspension, or delay in shipment requested by Customer; provided, however, that Customer shall fully reimburse Campbell for all costs, expenses and losses arising there from, including, without limitation, recovery of all direct costs incurred, a normal profit and Supplier’s cancellation fees. Price and delivery shall be subject to change upon any modification or suspension of an Order approved by Customer.

15. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns. Customer shall not assign its rights or obligations under this Agreement without Campbell’s prior written consent, which consent shall not be unreasonably withheld. Any attempted assignment in violation of this Section shall be void and have no force and effect. Campbell may subcontract the performance of any of its duties or obligations hereunder to any third party.

16. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Michigan, without giving effect to its conflicts of laws provisions. Any litigation or proceeding arising out of this Agreement shall be brought exclusively in the courts of the State of Michigan located in St. Clair County. Customer and Campbell hereby knowingly, voluntarily and irrevocably consent the personal jurisdiction of such courts and waive any objection as to venue or forum non conveniens. Each of the parties hereby waives the right to a trial by jury in connection with any such litigation or proceeding.

17. Export Restrictions. Customer acknowledges that the Products may be subject to export control laws of the United States, including, without limitation, the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR). Customer shall not export, re-export or divert any Products or component thereof in violation of the EAR, ITAR or any other law of the United States.

18. Force Majeure. Neither party shall be liable to the other party, or deemed to have breached or defaulted under this Agreement, for failure or delay in fulfilling or performing any obligation (except for payment obligations), to the extent such failure or delay results from any cause beyond such party’s direct control, including but not limited to acts of God, fire, flood, embargo, governmental acts or regulations, accident, labor dispute, strike, slowdown, war, riot, major equipment failure, delay in transportation, or shortage or inability to obtain necessary labor, materials, equipment, power and/or transportation. In the event of such delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of such delay.

19. Miscellaneous. These terms and conditions constitute and represent the complete and entire agreement between Campbell and Customer and supersede all previous or subsequent communications and representations, either written or verbal, with respect to the subject matter of any Order or invoice. No modification of these terms and conditions shall be binding on the parties unless made in writing and signed by an authorized representative of each party. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement or of any future breach of the provision so waived. If any provision, clause or part, or the application thereof is held invalid, the remainder of this Agreement or the application of such provision, clause or part under other circumstances shall not be affected thereby. This Agreement may be made in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement. Counterparts to this Agreement may be signed, transmitted and delivered electronically.