PURCHASE ORDER TERMS AND CONDITIONS

 1.   INTRODUCTION:  This proposal and acceptance hereof, is expressly limited to the terms and conditions set forth herein, all of which are material.  Buyer hereby objects to any additional terms and conditions not set forth herein and any such proposed additional terms and conditions are and shall be null and void, whether or not they materially alter this proposal.  Seller expressly agrees, unless it provides Buyer before acknowledging the purchase order or before delivery, whichever is earlier, a writing to the contrary that specifically refers to the provision, that in the event and to the extent of an inconsistency between the terms and conditions herein stated and the Seller’s terms and conditions, whether or not material, then the terms and conditions herein stated shall govern and the Seller’s terms and conditions will have no effect.  Without limiting the foregoing, in the event that any court or administrative or regulatory agency finds or declares that the terms and conditions herein do not govern the transaction, then the terms of the Uniform Commercial Code, and not the Seller’s terms and conditions, shall govern.  All terms of the Uniform Commercial Code providing any protection to a buyer, including but not limited to all warranty protection (express or implied) and all of the buyer’s remedies are incorporated herein.

1.   ACKNOWLEDGEMENT:  Please acknowledge receipt of this order promptly, making sure to verify price and delivery.  In no event shall price be subject to escalation due to increases the Seller experiences in labor and / or materials costs.  Acknowledgement by the Seller is effective when received at Buyer’s place of business and constitutes Seller’s agreement that all terms and conditions herein stated govern the transaction.

2.   MODIFICATION:  Buyer may at any time by written notice to the Seller, change or amend this Order and Seller agrees to promptly proceed with all such changes so ordered.  All such changes shall be subject to the provisions of this Order to the same extent and with the same effect as if originally set forth herein.

3.   IDENTIFICATION:  The purchase order number should appear on all packages, packing slips, invoices, bills of lading and correspondence.  Seller is to prepare a detailed packing list for each shipment.  Each box, container and skid to have a detailed packing list and a copy is to be placed outside each box.

4.   PAYMENT TERMS: INVOICING:  Invoices for completed purchase order items will be paid “net 30 days”, or will be discounted, if discount terms are offered by the Seller and accepted by the Buyer.  In cases where the Buyer agrees to partial shipment of a quantity ordered, payment will be made only when a Buyer purchase order item is complete, unless payment for partial shipments was authorized by the Buyer in advance.  In no event shall Buyer be liable for payment of interest on and amounts due or claimed due.  All delays in forwarding or transmission of supporting documents for processing payment and errors or omissions therein, shall constitute a basis for a corresponding increase in the period of time for payment without loss of discount rights.  The invoiced amount must correspond with the amount stated in the Purchase Order.  Nonconforming invoices will be returned to the Seller or withheld from processing until changes are made and conformity is attained.

5.   SCOPE: DRAWINGS:  The Seller has inspected the drawings and other relevant data and is satisfied there are no ambiguities and that it understands fully the scope and nature of the job.

6.   QUANTITY:  All quantities received in excess of that indicated on the purchase order, may be returned at Seller’s expense, unless approved prior to the date of shipment.  Partial shipment of a quantity ordered is acceptable only when approved in advance of shipment by Buyer and subject to the foregoing Payment Terms section.

7.   DELIVERY:  TIME IS OF THE ESSENCE.  Complete delivery must be made on or before the delivery date indicated on the purchase order, unless Buyer agrees prior to said delivery date to the establishment of another delivery date.  Seller shall notify the Buyer immediately if for any reason the delivery is threatened or cannot be made as promised.  It is understood that any slippage in the scheduled delivery date will be corrected by the Seller at the Buyer’s request by use of overtime at no cost to the Buyer.  No deliveries shall be made earlier than two weeks prior to the established delivery date without the express prior consent of Buyer.  Failure to make timely deliveries as herein set forth shall constitute a breach by Seller for which Buyer need not permit cure and upon which Buyer shall have the right without limiting other rights or remedies, to immediate cancellation without liability, including liability for return transportation costs.  The parties shall agree to the method of delivery and the allocation of delivery transportation costs; absent such an express agreement, Seller shall pay all transportation cost and delivery shall be F.O.B. Buyer’s plant.

8.   CURE:  Without limiting any other rights or remedies, Buyer may reject any non-conforming goods and shall not be required to accept replacements or substitutes or permit cure; Seller shall have the right to cure any breach or delivery of non-conforming goods without the prior express consent of the Buyer.  By permitting cure in one instance, Buyer shall not be deemed to have waived its right to refuse to permit cure in any other instance.  In the event that Buyer permits the Seller or the Seller is deemed or declared to have the right to cure a breach or non-conforming delivery, said cure must be completed before the delivery date set forth herein or in related documents.  Buyer shall have the right to reject non-conforming installment deliveries regardless of whether the non-conformity is incurable and substantially impairs the value of the lot.

9.   WARRANTIES:  By accepting this purchase offer by acknowledgement, delivery or otherwise, the Seller warrants that all goods delivered hereunder will be of good quality, material and workmanship, merchantable, free from all defects and fit for their intended use and those particular purposes of which the Seller has been informed.  Seller further warrants that the goods and all materials and work will conform to all applicable drawings, specifications, samples or other oral or written descriptions or representations given in all respects with respect to the goods, materials and work, notwithstanding any subsequent general disclaimer by the Seller.  For example, Seller warrants that all items furnished will be of sufficient size and capacity and of proper materials to perform properly, and will meet or exceed the performance requirements of this Order.  Buyer further expressly reserves, and the Seller agrees to the reservation of, all express warranties at any time made by the Seller and all implied warranties of merchantability and fitness for a particular purpose.  All warranties are reserved without limitation or restriction as to amount, duration or otherwise.  Seller warrants that it has good title and full rights to convey to the Buyer the goods to be sold hereunder free and clear of all encumbrances.  Seller further warrants and guarantees that the sale or use of its products will not infringe on any United States or foreign patent, copyright, trademark or similar property rights of any third part, and Seller undertakes to indemnify Buyer against all judgments, decrees, liability, costs and expenses resulting from such alleged infringement and covenants that Seller will upon request of Buyer and at Seller’s expense, defend or assist in the defense of any suit or action which may be brought against Buyer or those selling or using any product of Buyer by reason of any alleged infringement of any patent in the sale or use of Seller’s products.  All warranties set forth in this section shall survive any inspection, acceptance, or payment by Buyer of or for the goods or services.  Any express warranty provisions contained in any of the Seller’s contract documents shall be in addition to and not in lieu of the express and implied warranties herein set forth.

10. REMEDIES:  Buyer expressly reserves all rights and remedies available to a buyer under the Uniform Commercial Code, including all rights to incidental and consequential damages, without any limitation or restriction or attempted negation by the Seller.  Any provision in any document related to the purchase order calling for or establishing liquidated damages are available to Buyer as an alternative remedy at the sole option of Buyer and not that said liquidated damages are an exclusive remedy.  Any express remedial provision (including any repair or replacement remedy) contained in any of the Seller’s contract documents shall be in addition to and not in lieu of the remedies herein set forth.

11. ASSIGNMENT:  Seller shall not assign or subcontract any part of this purchase order for performance by another vendor without the express written consent of Buyer.

12. INSPECTION:  All purchases and obligations of Buyer are expressly subject to Buyer’s satisfactory inspection, testing and approval of the goods at its premises (or, at Buyer’s sole election, the Seller’s premises), including goods for which the purchase price is payable C.O.D. or upon presentation of title documents, bills of lading or warehouse receipts.  No goods shall be deemed to have been accepted until Buyer has been furnished an opportunity for thorough inspection and testing after arrival of the goods at destination.  Any goods not in accordance with the instructions or specifications of Buyer or otherwise non-conforming may be returned by Buyer to the Seller at the full risk of the Seller and at the Seller’s expense for all handling and transportation costs, both ways.  When goods have been rejected by Buyer and returned for replacement, the Seller must await new shipping instructions from Buyer before making the replacement.  Notwithstanding anything herein or in other contract documents to the contrary, the rights of inspection and testing of Buyer and any actual inspection or testing by Buyer shall not be deemed to be an acceptance of and non-conformity by Buyer or a waiver of any rights or remedies of Buyer for any defective or otherwise non-conforming goods or delivery, all of such rights and remedies being expressly retained herein.

13. RISK OF LOSS:  Unless otherwise expressly stated in this purchase order or in another contract document executed by Buyer, the risk of loss shall be on the Seller until delivery of the goods to Buyer at its premises or at a job site alternatively designated by the Buyer.  Where the contract provides delivery will be F.O.B. the Seller’s place of business, “with freight allowed to Buyer’s place of business”, (or words of similar meaning or effect), the provision shall be interpreted to mean F.O.B. Buyer’s premises, so that the risk of loss will remain on the Seller until delivery to Buyer at its premises.

14. REPAIRS TO NON-CONFORMING GOODS:  Any attempted repairs by Buyer to defective or otherwise non-conforming delivered goods in an attempt to correct the defect or non-conformity shall not be deemed an exercise of dominion over the goods or acceptance of the goods or non-conformity so that Buyer shall retain the right to reject such goods or revoke any actual or deemed acceptance if the repairs prove unsuccessful or unsatisfactory to Buyer.

15. SETOFFS AND COUNTERCLAIMS:  Buyer shall have the right to offset and deduct from any amounts due to the Seller hereunder or otherwise any claim of Buyer against the Seller.  The right of the Buyer to so offset and deduct shall not be limited to claims arising out of the transactions contemplated hereby but shall extend to all claims of Buyer against the Seller, of whatever nature and however and whenever arising.

16. CANCELLATION DAMAGES:  Buyer may cancel the purchase order upon any failure by Seller to fully comply with any term or condition set forth herein or upon any default or breach by the Seller, including a breach arising out of the failure of the Seller to make timely delivery as set forth above.  In the event of any bankruptcy, arrangement or other insolvency or creditors relief proceeds commenced by or against the Seller, including without limitation, the appointment of an assignee for the benefit of creditors or a receiver of the Seller or its properties, the Buyer, at its sole option, shall have the right to cancel any unfilled portion of this order without any liability whatsoever.  Buyer shall have the right to cancel any part or all of this purchase order without cause and at its sole option, in which case its sole liability to the Seller will be for reimbursement for reasonable cost incurred or commitments made prior to receipt of written notice of cancellation by the Seller.  Under no circumstances shall Buyer be liable to the Seller, or to any parties standing in place of the Seller, for lost profits or incidental or consequential damages of any nature.

17. INDEMNIFICATION:  Seller shall defend, protect, indemnify and hold harmless Buyer against all suits at law or in equity and from all liability, damages, claims, demands, costs and fees, including reasonable attorney fees, caused or alleged to have been caused by the goods to be sold hereunder or by any wrongful act or omission (including direct and strict liability) of the Seller, irrespective of whether the claimant was in privity with the Seller or Buyer.  Seller shall further defend, protect, indemnify and hold harmless Buyer against all suits at law or in equity and from all damages, claims demands, cost and fees, including reasonable attorney fees, arising out of or related to any actual or alleged infringement of any United States or foreign patent resulting from the manufacture, sale or use of its goods.

18. PACKING, ETC.:  Unless otherwise expressly stated herein, no charge shall be made to Buyer for packing, crating, drayage, or storage, said charges and costs being deemed to be included in the purchase price.

19. OWNERSHIP:  All tools dies, patterns, raw materials and other items (whether or not similar) that are furnished or paid for by the Buyer (“materials”) shall be the exclusive property of the Buyer.  All materials shall be subject to removal at any time without additional costs upon demand by Buyer, shall be used only in filling order from Buyer, shall be kept separate from other property of the Seller and shall be clearly identified as the property of the Buyer.  Seller shall and does hereby assume all risk and liability for loss and damage thereto, except for wear and tear, and agrees to supply detailed statements of inventory upon the request of Buyer.  Buyer shall further have exclusive ownership and title to all drawings and specifications furnished to the Seller for use with this Order.  Seller shall, upon the earlier of the request of the Buyer or upon completion of this Order, return all such materials, drawings, and specifications to Buyer (except those materials or drawings which the Buyer has abandoned), if Buyer has expressly so notified the Seller in writing.

20. CONFIDENTIALITY:  All drawings, prints, data, specifications, disclosures and technical information furnished by the Buyer in connection with this Order or Buyer’s original inquiry or embraced within the bills of material are confidential and proprietary information belonging to the Buyer.  They are delivered to Seller for the sole purpose of preparing an estimate or for use in manufacture of the ordered goods.  They shall be held by the Seller in strict confidence, shall not be disclosed to any third party, and shall not be used by the Seller for any other purpose.  By acknowledging this Order, or by preparing an estimate or by manufacturing the goods, Seller expressly agrees to the terms of this paragraph.  Without limiting the foregoing, no information regarding this Order shall be given by the Seller to the Buyer’s customer or its agents without the express prior written consent of the Buyer.

21. STATUTE OF LIMITATIONS:  The statute of limitations governing the transactions contemplated herein shall be as set forth in the applicable Uniform Commercial Code or other statute, and any attempt by the Seller to limit the period during which actions may be brought shall be null and void.

22. GOVERNING LAW: JURISDICTION AND VENUE:  The interpretation and enforcement of the contract shall in all respects be governed by the laws of the Commonwealth of Massachusetts.  The courts of the Commonwealth of Massachusetts and the federal courts located in the district of Massachusetts shall have jurisdiction over and be the exclusive venue of any action brought relative to the transactions contemplated hereby; by entering into the transactions, you agree to submit to the jurisdiction and venue.  In the event the foregoing sentence is not deemed to govern, then jurisdiction and venue shall be determined in accordance with the Uniform Commercial Code as in effect, from time to time, in the Commonwealth of Massachusetts.  Except as set forth in this paragraph, any provision of any document related to the transactions contemplated hereby which attempts or purports to establish governing law, jurisdiction or venue, or otherwise establish a court, a state or another location in which actions shall be brought shall be null and void.