Purchase Order Terms and Conditions

Acceptance, Terms and Conditions of Contract

Whether construed as an offer, acceptance or confirmation, these terms and conditions of purchase include all documents and exhibits attached hereto and all other terms incorporated by reference herein (the aggregate of which shall hereinafter be referred to as this “Purchase Order”). This Purchase Order shall constitute the final, complete and exclusive statement of this contract and may not be modified or rescinded except by a written change order issued by the Buyer.

If this Purchase Order constitutes an offer by the Buyer to purchase the goods and/or services specified upon the terms and conditions and at the price(s) and with the delivery date(s) specified herein, Seller shall indicate its acceptance of this Purchase Order by verbal acceptance communicated to the Buyer, by written acceptance on the face of this Purchase Order received by the Buyer, by other written confirmation received by the Buyer, by commencing work on this Purchase Order in any manner, expressly conditioned on notice of such commencement of work received by the Buyer, or by the delivery of the goods or services within the time for such delivery as stated in this Purchase Order.

As an offer, this Purchase Order expressly limits acceptance to its terms and conditions, and notification of objection to any different or additional terms in any response to this offer from the Seller is hereby given. If this Purchase Order is construed as an acceptance of the Seller’s offer, this acceptance is expressly conditioned on the offeror’s assent to any additional or different terms contained in this Purchase Order. If this Purchase Order is construed as confirmation of an existing contract, the parties agree that this Purchase Order constitutes the final, complete and exclusive terms and conditions of the contract between the parties. If the parties have otherwise completed a signed, written contract, the parties agree that the use of this Purchase Order to place orders for goods or services pursuant to such a contract shall be construed to supplement the terms of such written contract only to the extent that the terms and conditions of this Purchase Order are not inconsistent with such written contract.

Regardless of its construction as an offer, acceptance, confirmation or use to place orders for goods or services pursuant to an earlier contract, this Purchase Order incorporates by reference all terms of the Uniform Commercial Code providing any protection for the Buyer, including, without limitation, all express and implied warranty protection, and all Buyer’s remedies under the Uniform Commercial Code.

CISG, Governing Law, Venue

The parties hereby agree to exclude application of the UN Convention on the International Sale of Goods (CISG) to any contract made pursuant to this Purchase Order. Any dispute arising under this contract will be governed by the law of the State of Delaware, United States of America, including the Delaware statutes of limitations, but excluding conflict of laws provisions. Any dispute arising under this contract shall be adjudicated exclusively in a state or federal court located in Delaware, USA. The Seller waives any and all objections that it might otherwise have as to personal jurisdiction and venue in these exclusive tribunals.

Time Delivery; Shipping; Buyer’s Inspection; Acceptance

Time is of the essence of this Purchase Order. Unless otherwise agreed by the parties in writing, all deliveries will be on the basis of DAP (Delivered at Place), Incoterms 2020. Delivery will be made as specified on the face of this Purchase Order. Buyer reserves the right to reject goods and to cancel all or any portion of this Purchase Order in the event of failure to deliver at the time and place specified.

Buyer’s acceptance of any part of a shipment not delivered as specified herein shall not obligate Buyer to accept the remainder of that shipment or any future shipments. All goods shall be received subject to Buyer’s inspection and acceptance, and subject to Buyer’s right to reject and return at Seller’s expense goods which fail to conform strictly to the requirements of this Purchase Order.

Termination

Buyer may at any time, without cause, terminate this Purchase Order in whole or in part upon written notice to Seller. In such event, Seller shall be entitled to a reasonable termination fee consisting of a percentage of the Purchase Order price reflecting the percentage of the work, goods delivered, or services properly performed prior to termination and reimbursement of any expenses incurred or non-cancellable fees which were pre-approved by Buyer. Payment of such termination fee shall be Seller’s sole remedy. Upon Buyer’s request, Seller shall preserve, protect and deliver to Buyer, at Buyer’s expense, materials on hand, work in progress, and completed work, both in its own and in its suppliers’ plants. Other than as provided herein.

Limitation of Liability

To the fullest extent allowed by law, Seller shall not be entitled to any indirect or consequential loss or similar damage such as, but not limited to, loss of profit, loss of revenue or loss of contracts, regardless of whether such liability arises from a claim based in contract, warranty, tort or otherwise.

Indemnification

To the fullest extent permitted by law, Seller agrees to indemnify, defend, and hold harmless Buyer, its affiliates, and their respective directors, officers, employees and agents (the “Indemnified Parties”) from and against all claims, demands, causes of action, losses, costs and expenses (including without limitation reasonable attorneys’ fees and costs of defense) (collectively, “Losses”) arising out of or incident to Seller’s performance hereunder, which Losses are wholly or in part, attributable to (a) the negligence or willful misconduct of the Seller, (b) the failure of the Seller to comply with applicable laws, or (c) bodily injury, sickness, disease or death (including but not limited to bodily injury, sickness, disease or death of the employees of Seller or Buyer), or to damage to or destruction of tangible property (including the loss of use thereof); in each case regardless of whether or not caused in part by the negligence or other fault of any Indemnified Party hereunder; provided that Seller shall not be liable for Losses caused solely by the gross negligence or willful misconduct of any Indemnified Party.

Payment/Set-Off

All payments shall be due 5/10 Net 60. Buyer shall be entitled at all times to set-off any amount owing from Seller to Buyer, whether under this Purchase Order or otherwise, against any amounts otherwise payable to Seller.

Confidentiality

Seller and its directors, officers, employees and agents shall not, without Buyer’s prior written consent, (a) disclose to any third party any information pertaining to the goods provided or services performed hereunder, or pertaining to Buyer’s business or operations which Seller obtains or has access to in connection herewith; and/or (b) in any manner advertise or publish the fact that Seller has contracted to furnish Buyer the goods or services herein ordered, or use any trademarks or tradenames of Buyer in Seller’s advertising or promotion materials.

Waiver of Defaults

No failure by Buyer to enforce at any time any of the terms or conditions of this Purchase Order shall constitute a waiver thereof or in any way impair Buyer’s right at any time to avail itself of such remedies as it may have to enforce such terms or conditions. No waiver by Buyer hereunder will be effective unless in writing and signed by Buyer.

Survival; Remedies Cumulative

All agreements and representations of Seller herein (including those regarding confidentiality, indemnification and warranties) shall survive delivery and final payment hereunder, or any earlier termination hereof. All of the rights and remedies available to Buyer hereunder are in addition to, and not in limitation of, the rights and remedies otherwise available at law or in equity.

Severability

Any provision of this Purchase Order that is unenforceable in any jurisdiction shall be ineffective to the extent of such unenforceability (but shall be enforced to the maximum extent permissible) without invalidating the remaining provisions hereof.