Terms of Sale & Liability

Cooper MAT LLC dba Cooper Heat Treating
Terms and Conditions of Sale

All quotes and subsequent orders placed for/with Cooper MAT dba Cooper Heat Treating are made under the following conditions unless otherwise noted in the quote corresponding to the given job:

1. CONSTRUCTION. By ordering goods or services described herein, the buyer (“Buyer”) acknowledges it is transacting business at Cooper MAT LLC dba Cooper Heat Treating (“Cooper HT”), principal place(s) of business in Detroit, Michigan, and at any other location where Cooper HT manufactures said goods or from which Cooper HT provides services.

2. QUOTATION. Although labeled “Terms and Conditions of Sale,” Cooper HT intends this document as an offer to sell (“Offer” or “Order”). The terms and conditions of this Order, together with those set forth or referred to on the face of this form as accepted by Cooper HT in writing, constitute the entire agreement for sale. Cooper HT may withdraw its Offer at any time prior to Buyer’s acceptance. Unless otherwise indicated, every Cooper HT Offer expires twenty-one (21) days from the date of issuance.

3. ACCEPTANCE AND ACKNOWLEDGEMENT OF OFFER. Buyer’s placement of an order for goods or services in response to this Offer constitutes Buyer’s acceptance of the terms of this Offer. Buyer’s acceptance of the Offer is expressly limited to the specifications, prices, and other terms stated in the Offer, including these “Terms and Conditions of Sale” and the “Statement of Limited Liability”. Notice is hereby given, and Buyer acknowledges, that different or additional terms in Buyer’s order shall be considered material alterations of this Offer are expressly rejected and shall not be effective without the written approval of an authorized Cooper HT representative. Cooper HT hereby rejects all terms and conditions set forth under any prime or other contract to which the Buyer is a party.

4. PRICE. Cooper HT reserves the right during execution of this Order to amend its prices if increases in raw materials, wages or the cost of production of the goods increase as determined solely by Cooper HT. Such price increase shall become effective after Cooper HT provides Buyer with written notice, such as invoice. Supporting documentation may or may not be provided at Cooper HT’s discretion.

5. MANUFACTURING. If any of the goods covered by this Order are to be manufactured in accordance with drawings and/or specifications provided by Buyer (the “Specifications”), Cooper HT shall manufacture the goods strictly in accordance with the Specifications. Buyer may make changes to the Specifications at any time upon 30 days advance notice to Cooper HT. If such changes result in delay, losses or additional expense to Cooper HT or unusable raw materials, WIP or finished goods, or such changes result in the obsolescence of any goods or materials, Buyer will reimburse Cooper HT for all costs incurred and the margin applicable for the products being run when the change occurred. Additionally, an appropriate adjustment of the delivery schedule will be made. Notification of changes in specifications or material selections must be approved in writing by C. Matthew Cooper, Member Manager.

6. QUANTITY MODIFICATIONS. Cooper HT reserves the right to over or under ship by five percent (5%) of the ordered quantity for any given shipment, until the Order is complete, and bill Buyer for the amount actually shipped. Nothing herein shall relieve either party from fulfilling the obligations set forth herein.

7. DELIVERY. Unless otherwise agreed in writing: for domestic deliveries, delivery is F.O.B. Cooper HT manufacturing site, packaged and packed as directed by Buyer; for international shipment, delivery is F.C.A. manufacturer’s site. If no directions for packaging are provided by Buyer, Cooper HT will use an appropriate packaging.

8. CARRIER. In the event that Buyer designates a specific carrier, Cooper HT will attempt to use that carrier. However, Cooper HT may select an alternate carrier to transport the goods if, in Cooper HT sole and exclusive discretion it determines use of such alternative carrier is necessary to satisfy delivery requirements. All freight, insurance and other shipping expenses shall be borne by Buyer, whether paid directly by Buyer or billed to Buyer by Cooper HT. Cooper HT can bill Buyer for shipping expenses as a separate line item on a product shipment invoice or as a separate billing. Buyer shall inspect shipments for freight damages at time of receipt and immediately notify carrier of any freight damage, file its claim directly with the carrier, and notify Cooper HT of the damage. Cooper HT is not liable for freight damage or for losses incurred by Buyer as the result of freight damage or delays.

9. HANDLING FEE. If Cooper HT agrees to pre-pay freight charges on behalf of Buyer and add the prepaid freight charges to the total costs of this Order, then Buyer agrees to pay to Cooper HT an additional administrative handling fee for each such shipment.

10. INSPECTION AND REVOCATION. Buyer shall inspect goods upon delivery to ensure goods meet Buyer’s Specifications, but in no event later than twenty-one days (21) upon delivery of such goods. Within five (5) business days of Buyer’s inspection, Buyer shall provide written notice should goods fail to meet Buyer’s Specifications. For any goods not meeting Buyer’s Specifications, Buyer’s rights are limited to the provisions of paragraph 11 through 13.

11. LIMITED LIABILITY. Cooper HT shall not be liable to Buyer or to any other third person or entity with respect to any subject matter of this Order, under any equity, common law, tort, contract, estoppel, negligence, strict liability or other theory, for any (a) incidental, special, punitive, consequential or indirect damages or (b) damages resulting from loss of sale, business, profits, data, opportunity or goodwill, even if the remedies provided for in this Order fail of their essential purpose and even if the party has been advised of the possibility of any of the foregoing damages.

12. PAYMENT. Buyer agrees to pay Cooper HT the prices set forth in this Order. Payment terms are fifteen (15) days from the date of invoice. Cooper HT does not accept credit card payments. Checks and/or approved electronic deposits are accepted forms of payment. Deposits may be required prior to work effort.  Extended payment terms are available, pending Cooper HT credit manager approval, but could be subject to additional charges.

• 12.1. All orders are subject to management approval and periodic review of credit and payment terms, which may be modified by Cooper HT on reasonable notice for cause. A late payment charge of one and one-quarter percent (1 ¼ %) per month (annual rate of 15%) will be added to past due accounts. Buyer shall pay all attorneys’ fees, collection costs and other expenses incurred by Cooper HT for collection of past due invoices.
• 12.2. When Check Remittance is required or necessary, checks should be sent to: Cooper Heat Treating LLC, 20251 Sherwood Street, Detroit, MI 48234.

13. SETOFF. All claims for money due or to become due from Buyer shall be subject to deduction or set off by Cooper HT by reason of any counterclaim arising out of this Order or any other transaction with Buyer.

14. INDEMNIFICATION. Buyer shall indemnify and hold harmless Cooper HT, its owners, parents, affiliates subsidiaries, officers, directors, employees, and agents, from any and all liability, loss, expense (including attorneys' fees and costs incurred by Buyer) with respect to (a) claims of misuse of proprietary information, and infringements of patents, trademarks or copyrights based on designs, drawings, Specifications or other information which Buyer provides to Cooper HT or which are developed by Cooper HT or others in conjunction with Buyer (b) any damage or liability claimed by a third party, arising from the design, manufacture, integration or usage of a product which alone or as a component in an assembly, is alleged or proved to have caused injury or damage, (c) any damage or liability, with respect to Buyer’s failure to comply with all applicable foreign, U.S. federal, state or local laws, ordinances, rules, orders and regulations, including without limitation U.S. export control laws and any regulations and/or orders thereof or failure to provide Cooper HT adequate information related thereto, and (d) any other breach of Buyer’s obligations hereunder.

15. INTELLECTUAL PROPERTY. Any invention or intellectual property first made or conceived by Cooper HT in the performance of this Order or which is derived from or based on the use of information supplied by Buyer not otherwise subject to a confidentiality agreement between the parties, shall be the property of Cooper HT and Buyer shall execute such documents necessary to perfect Cooper HT title thereto. Buyer agrees that it shall not obtain any grant, option, or license to any patent, trade secrets or other intellectual property rights now or hereafter held by Cooper HT. Buyer further agrees it shall not decipher, decompile, disassemble or reverse engineer any of the Goods sold hereunder. Free samples provided for evaluations purposes to Buyer will be considered sold under this provision.

16. INSURANCE. Buyer shall carry and maintain insurance of the type as follows: a) Worker’s Compensation and Employers’ Liability Insurance as required by applicable state statutes; b) commercial general liability and umbrella liability insurance, minimum per-occurrence limit, general aggregate limit, and products completed operations aggregate limit of $1,000,000; c) comprehensive automobile liability insurance with limits not less than $1,000,000; and d) commercial property insurance that shall cover the replacement cost of the property insured. All insurance policies shall contain language waiving all subrogation rights against Cooper HT. Buyer shall provide to Cooper HT Certificates of Insurance upon request and shall name Cooper HT as an additional insured. Neither the failure of Buyer to comply with any or all of the insurance provisions of this Order, nor the failure to secure endorsements on the policies as may be necessary to carry out the terms and provisions of this Order shall be construed to limit or relieve Buyer from any of its obligations hereunder.

17. TOOLING. Tooling Cooper HT requires to perform its obligations under this Order shall remain the property of and in the custody of Cooper HT or Cooper HT vendors and Buyer shall have no ownership rights therein unless otherwise agreed to in writing signed by an authorized representative of Cooper HT even if charges for the tooling are required.

18. LIEN. Cooper HT shall have a lien for any amounts owed by Buyer to Cooper HT attaching to all of Buyer provided tooling, molds or other property designed, manufactured, fabricated or otherwise used by Cooper HT.

19. SUBCONTRACTOR. Cooper HT expressly reserves the right to subcontract all or part of this Order without the consent of the Buyer.

20. ASSIGNMENT. Cooper HT reserves the right to assign any of its rights or obligations hereunder. Buyer shall not assign its rights or obligations hereunder without the prior written consent of Cooper HT.

21. CUSTOMER RESCHEDULES. Unless otherwise stated in the Offer, all goods ordered hereunder shall be deliverable within twelve (12) months of the date of this Order. In the instance that Buyer purchases a quantity of product less than the ordered quantity, Buyer shall pay for the shipped quantity at the recalculated unit price based upon such shipped quantity, and the balance of this Order shall be cancelled. Buyer initiated changes in delivery schedule must be agreed to in writing in advance by Cooper HT and will incur the following MINIMUM fees (expressed as a percentage of the rescheduled shipment’s value): Within the same shipping month = 0%, 1 to 3 months= 2% per month, 3 to 6 months = 3% per month. Rescheduling requests exceeding six (6) months or requests to place an order on indefinite “HOLD” will be treated by Cooper HT as a termination under Section 21 without prejudice to any other rights Cooper HT may have under this Order.

21. TERMINATION.

• 21.1. Either party shall have the right to terminate this Order upon a material breach of any terms and conditions stated herein. The non-breaching party shall give the breaching party written notice of the breach, the breaching party will have ten (10) days after receipt of the written notice to cure such breach or present the non-breaching party with a plan to cure the breach. In the event that Cooper HT finds that Buyer has breached any other order or contract with Cooper HT, Cooper HT may terminate this Order, in whole or in part. Buyer, however, remains liable under this Order in the event of such termination by Cooper HT.
• 21.2. Cooper HT has the right to terminate this Order, after giving Buyer four (4) days written notice of such termination, in the event Buyer makes, or it reasonably appears it shall make, an assignment for the benefit of creditors, is subject to any voluntary or involuntary provincial or federal receivership, insolvency or bankruptcy proceedings, becomes unable, or admits in writing its inability, to meet its obligations as they mature, fails to give adequate assurances of its ability to perform, or are dissolved or liquidated.

22. NON-WAIVER/SEVERABILITY. Cooper HT waiver of any right under this Order shall not constitute a waiver of such right or any other right on any other occasion. In the event any provision of this Order is determined to be invalid, such invalidity shall not affect the validity of remaining portions of this Order, and the parties shall substitute for the invalid provision a provision that most closely approximates the intent and economic effect of the invalid provision.

23. INDEPENDENT CONTRACTORS. The relationship of the parties established under this Order is that of independent contractors and neither party is a partner, employee, agent or joint venture of or with the other and nothing in this Order shall preclude Cooper HT from contracting to provide similar goods or services for others.

24. BUYER SUPPLIED ITEMS. From time to time Buyer may supply Cooper HT with items to incorporate into goods sold under this Order. Cooper HT shall use reasonable measures to protect and preserve items provided by Buyer and will only be liable for replacement of such items if lost, destroyed or rendered useless due to Cooper HT gross negligence. Unless otherwise agreed to by the parties, any items of personal property supplied by Buyer to Cooper HT related to this Order will be returned to Buyer, at the Buyer's expense, upon expiration of this Order, as received less normal wear and tear. Buyer warrants that any items provided hereunder will comply with all applicable federal, state and local laws and regulations. Buyer further warrants that supplied components meet all performance, specification and inspection criteria.

25. SURVIVAL. The provisions of this Order those, by their sense and context, are intended to survive performance by either or both parties shall also survive the completion, expiration, termination or cancellation of this Order.

26. TAXES. Buyer is responsible for the payment of all taxes associated with the goods and services provided hereunder, including without limitation, sales, use, rental, personal property and any other taxes. If Buyer represents to Cooper HT that the goods under this order are exempt from sales, use or other taxes and such taxes are levied upon Cooper HT by federal, state or local authorities at any later time, Buyer will reimburse such costs to Cooper HT when billed by Cooper HT for such levies. Legal and court costs to contest such levies are to be the responsibility of the Buyer.

26. EXCUSABLE DELAYS. Cooper HT shall not be liable for damages (including but not limited to consequential or incidental damages) or delays in performance resulting from causes beyond its control. Such causes include, without limitation, fire, flood, earthquake, explosion or other casualty or accident, strikes or labor disputes, inability to procure parts, supplies or power, war or other violence, any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency, or any other act or condition whatsoever beyond the reasonable control of the party. Should Cooper HT experience an excusable delay, it shall cooperate with the Buyer in reasonable ways to minimize the impact of such circumstances.

27. MODIFICATION AND MERGER. The parties agree that this Order shall be modified only by further written agreement signed by both parties. This Order supersedes all prior oral and written communications between the parties to this agreement.

28. CONFIDENTIALITY. Buyer agrees that it will not disclose the contents of this Order to any unrelated party without the advance written consent of Cooper HT. Pricing shall be considered part of the order.

29. COMPLIANCE WITH LAWS. The parties represent and warrant that each shall comply with all applicable standards, provisions, and stipulations of all pertinent foreign, federal, state, and local laws, rules, regulations, ordinances, and Executive Orders. In addition, each party shall, at all times, act in a lawful manner and shall not use monies associated with this Order to bribe government officials.

29. CHOICE OF LAW. The laws of the State of Michigan shall govern this Agreement, notwithstanding conflict of laws. If an arbitrator or court determines that terms and conditions in addition to those contained in this offer should be included in interpreting the agreement between the parties, then notwithstanding any contrary Michigan law, the parties agree that any different terms and conditions shall be interpreted under Article 2 of the Uniform Commercial Code, section 2-207(2). The parties elect not to be bound by the United Nations Convention on Contracts for the International Sale of Goods.

30. VENUE AND JURISDICTION. The federal and state court in the State of Michigan shall have exclusive jurisdiction over all disputes and controversies arising out of this Order. Venue shall be proper in Detroit, Michigan, USA.

31. HEAT TREAT SERVICE SPECIFIC TERMS.

• Distortion and size change can only be determined by processing initial articles. Cooper HT is not responsible for maintaining any specific dimensional tolerances and will charge for straightening based on an hourly rate.
• Mixing is an inherent risk in processing in high production equipment. Cooper HT is unable to guarantee that parts will not be mixed with a small percentage of foreign material during processing, especially when processed in a batch furnace.
• All prices are quoted pending the successful completion and evaluation of a sample lot of parts.
• A lot is defined as all material received in a shipment that has the same part number, same heat of steel, same Purchase Order number, and which may be processed together without segregating or differentiating one group of parts from another.
• Quotations are based upon processing all work during a 5-day workweek at regular-time labor rates. Prices do not apply to work that must be expedited per customer request or processed on overtime.
• Parts, as received by Cooper HT, must be clean and free from dirt, rust, nicks, tooling marks, burrs, chips, debris, excessive oil or other contamination. If special cleaning is required to process the work, additional charges may apply.
• All parts received in bulk should come from the customer in durable, stackable containers capable of bulk loading and unloading. If Cooper HT must dispose of containers, the customer may be charged a disposal fee.
• The quoted price does not include any special handling, cleaning, testing (including tensile or mechanical), charts, certifications, straightening, packaging, hydrogen embrittlement relief, or hydrogen embrittlement testing, unless otherwise noted. Cooper HT assumes no responsibility for any hydrogen embrittlement of product.
• Cooper HT is not responsible for performing any mechanical testing, such as tensile or Charpy, unless specifically agreed to in advance at time of quoting. Unless otherwise specified, Cooper Heat Treating will convert tensile requirements to a hardness value consistent with ASTM A370.
• Cooper HT will process parts to our standard procedure and not to any industry, military, government or customer specification, unless specifically noted.
• When complete information is not available concerning the parts to be processed, the quoted price will not apply to parts of unusual size or shape.
• The convention for case depths is (T) for total and (E) for effective. Unless otherwise noted, (E) effective case is measured as that depth to which the case is harder than or equal to the equivalent of 50 HRC.
• Salt spray testing results apply to typical parts as unloaded from Cooper HT’s metal finishing process. Subsequent damage to the coating or including the part in an assembly may diminish the corrosion protection.
• Terms of sales are COD until credit approval has been granted. Once credit is granted, all invoices are Due Upon Receipt, becoming past due 30 days after the invoice date.
• All quotations may be withdrawn if not accepted within 60 days.
• If the customer misidentifies the material of parts, the customer will be charged for all processing and any damage resulting to equipment.
• Cooper HT cannot accept liability for reworking parts previously processed by the customer or another vendor.

To Request a Quotation, call Cooper MAT LLC dba Cooper Heat Treating at 313-891-1440.

Revision 20230101

STATEMENT OF LIMITED LIABILITY (Please Read Carefully)

ALL WORK AT COOPER MAT LLC dba COOPER HEAT TRAETING IS PERFORMED SUBJECT TO THE FOLLOWING TERMS:

THE BUYER OF METAL TREATING SERVICES FROM THE SELLER, UNDERSTANDS THAT EVEN AFTER EMPLOYING ALL THE SCIENTIFIC METHODS KNOWN TO THE SELLER, HAZARDS STILL REMAIN IN METAL TREATING. THE BUYER THEREFORE AGREES THAT SELLER'S LIABILITY SHALL NOT EXCEED TWICE THE AMOUNT OF THE CHARGES FOR THE WORK DONE ON ANY MATERIAL. THE BUYER AGREES AND UNDERSTANDS THAT THIS LIMITATION OF LIABILITY IS NOT AN EXCULPATORY CLAUSE. THE REIMBURSEMENT AND FULL LIABILITY OF THE SELLER SHALL NOT EXCEED TWICE THE AMOUNT OF THE CHARGES FOR THE WORK DONE BY THE SELLER ON ANY MATERIAL. THIS IS INTENDED TO REIMBURSE THE BUYER FOR THE CHARGES AND TO FULLY COMPENSATE THE BUYER IN THE AMOUNT OF THE CHARGES. THIS TERM APPLIES TO ALL WORK DONE BY THE SELLER EXCEPT WHERE OTHERWISE AGREED TO IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE SELLER.

THE BUYER, BY CONTRACTING FOR METAL TREATMENT, AGREES TO ACCEPT THE LIMITS OF LIABILITY AS EXPRESSED IN THIS STATEMENT TO THE EXCLUSION OF ANY AND ALL OTHER PROVISIONS AS TO LIABILITY THAT MAY BE SET FORTH IN THE BUYER'S OWN INVOICES, PURCHASE ORDERS OR OTHER DOCUMENTS. IF THE BUYER PROPOSES A DIFFERENT OR ADDITIONAL LIABILITY PROVISION, THE SAME MUST BE AGREED TO IN WRITING AND SIGNED BY AN OFFICER OF THE SELLER BEFORE WORK IS STARTED OR SERVICES ARE PROVIDED. IN SUCH EVENT, THE BUYER UNDERSTANDS THAT A DIFFERENT CHARGE FOR SERVICES MUST BE AGREED ON, REFLECTING THE HIGHER RISK TO THE SELLER AND THAT NO WORK WILL BE STARTED UNTIL BOTH THE SELLER AND THE BUYER HAVE SIGNED AN AGREEMENT SETTING FORTH THE NEW CHARGES AND TERMS OF LIABILITY. OTHERWISE, THE TERMS SET FORTH HEREIN ARE BINDING ON THE BUYER.

IT IS AGREED BY THE BUYER AND THE SELLER THAT THE INABILITY TO DISCOVER A DEFECT WITHIN A REASONABLE PERIOD OF TIME AFTER THE RECEIPT OF A SHIPMENT OF TREATED MATERIAL, NOT TO EXCEED FIVE (5) BUSINESS DAYS, WILL NOT VOID THE LIMITATION OF LIABILITY CONTAINED IN THIS AGREEMENT. IT IS THE BUYER'S OBLIGATION TO NOTIFY THE SELLER IF IT DOES NOT AGREE TO THE LIMITATION OF LIABILITY CONTAINED HEREIN AND A FAILURE ON THE PART OF THE BUYER TO DO SO IN WRITING BEFORE WORK STARTS WILL BE DEEMED ACCEPTANCE OF THIS LIMITATION OF LIABILITY.

THE SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, AS TO THE PERFORMANCE OR CAPABILITIES OF THE MATERIAL AS TREATED, OR THE METAL TREATMENT. THE AFOREMENTIONED LIMITATION OF LIABILITY STATED ABOVE IS SPECIFICALLY IN LIEU OF ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, AND ANY OTHER SUCH OBLIGATION ON THE PART OF THE SELLER.

THE SELLER'S LIABILITY TO THE BUYER SHALL CEASE ONCE ANY FURTHER PROCESSING, ASSEMBLING OR ANY OTHER WORK HAS BEEN UNDERTAKEN BY THE BUYER OR ANY THIRD PARTY.

No claims for shortage in weight or count will be entertained unless presented in writing within five (5) business days after receipt of materials by the Buyer. No claims will be allowed for shrinkage, expansion, deformity, or rupture of material in treating or straightening, except by prior written agreement, as above, nor in any case for rupture caused by or occurring during subsequent grinding. Whenever the Seller is given material with detailed instructions as to treatment, the Seller's responsibility shall end with the execution and completion of those instructions. Failure by the Buyer to indicate plainly and correctly the kind of material (i.e., proper alloy designation) to be treated, shall cause an extra charge to be made to cover any additional expense incurred as a result thereof, but shall not change the LIMITATION OF LIABILITY stated above. When the Buyer provides specifications for the metal treating service to be provided, makes changes in the kind of materials (i.e. proper alloy designation) to be treated, or changes the process to be used, the Buyer specifically understands and agrees that this LIMITATION OF LIABILITY shall remain in effect, but that additional charges for services will be due and owing to cover the additional expense incurred as a result of changes made by the Buyer.

The Buyer agrees there will be no liability on the Seller in contract or tort (including negligence and strict liability) for any special, indirect or consequential damages arising from any reason whatsoever, including but not limited to personal injury, property damages, loss of profits, loss of production, recall or any other losses, expenses or liabilities allegedly occasioned by the work performed on the part of the Seller.

 No agent or representative is authorized to alter the conditions, except in writing duly signed by an officer of the Seller.

The Seller's services and work are expressly limited to the terms and conditions contained on the face and back of the Seller's quotation, purchase order, sale acknowledgement or other forms. Any different or additional terms contained in any of the Buyer's forms are hereby deemed to be a material alteration and notice of objection to them is hereby given.

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