INDUSTRIAL PARTS AND EQUIPMENT
PURCHASE ORDER
TERMS AND CONDITIONS OF PURCHASE

1.        ACCEPTANCE AND TERMS AND CONDITIONS:  Seller shall accept this Order and any amendments thereto by signing the acceptance copy and returning it to the Buyer promptly.  (b) By acceptance of this Order, Seller agrees to be bound by and to comply with all terms and conditions of this Order, including any supplements thereto, and all specifications and other documents referred to in this Order.  However, performance of the work called for by this Order in the absence of Seller’s written acknowledgement thereof shall be deemed acceptance of this Order.  (c) This Order does not constitute an acceptance of Buyer of offer to sell, any quotation, or any proposal.  Reference in this Order to any such offer to sell, quotation, or proposal shall in no way constitute a modification of any of the terms and conditions of this Order.  AN ATTEMPTED ACKNOWLEDGEMENT OF THIS ORDER CONTAINING TERMS AND CONDITIONS INCONSISTENT WITH OR IN ADDITION TO THE TERMS AND CONDITIONS OF THIS ORDER IS NOT BINDING UPON BUYER UNLESS SPECIFICALLY ACCEPTED BY BUYER IN WRITING, AND BUYER HEREBY OBJECTS THERETO.

2.        PRICES:  All prices are firm unless otherwise agreed in writing.

3.        EXTRA CHARGES:  No charges of any kind, including, but not limited to charges for boxing, packing, loading, bracing or cartage will be allowed unless specifically agreed to by Buyer in writing.

4.        TRANSPORTATION:  Transportation charges on goods sold must use BUYER’S shipping account numbers.  If oversized, or above seventy (70) pounds, contact Buyer for shipping methods.  No insurance charges will be allowed unless requested and/or authorized by Buyer.

5.        DELIVERY SCHEDULE:  Unless otherwise agreed in writing, Seller shall not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet Buyer’s requested delivery date.  It is Seller’s responsibility to comply with this requested delivery date, but not to anticipate Buyer’s requirements.  Goods received by Buyer in advance of requested delivery date may be returned to Seller, or stored by Buyer, at Seller’s expense.

6.        DEFAULT:  NOTICE OF DELAY:  Time is of the essence of this Order.  In the event Seller for any reason anticipates difficulty in complying with the requested delivery date, or in meeting any of the other requirements of this Order, Seller shall immediately so notify Buyer in writing, giving pertinent details:  provided, however, that such notice shall be informational only in character and that its receipt by Buyer shall not be construed as a waiver by Buyer (i) of any delivery schedule or requested delivery date, or (ii) of any other rights or remedies provided to Buyer by law or this Order Provided Seller has complied with the provision of NOTICE OF DELAY, Seller will not be liable for damages for delay in delivery due to proximate cause beyond its reasonable control and without its fault or negligence.  If Seller, however, for any reason does not comply with buyer’s requested delivery date, Buyer in addition to its remedies provided by law, and its option may:  (a) terminate the whole or any part of this Order in any one of the following circumstances:  (i) if Seller fails to perform within the time specified herein or any extension thereof; or (ii) if Seller fails to perform any of the other provisions of this Order, or so fails to make progress as to endanger performance of this Order in accordance with its terms, and in either of these two circumstances does not cure such failure within a period of ten (10) days or such longer period as Buyer may authorize in writing after receipt of notice from Buyer specifying such failure; and (b) upon such termination Buyer may procure, upon such terms as it shall deem appropriate, supplies or services similar to those so terminated, in which case Seller shall continue performance of this Order to the extent not terminated and shall be liable to Buyer for any excess costs for such similar supplies or services.  As an alternate remedy, and in lieu of termination of default, Buyer, at its sole discretion, may elect (i) to extend the delivery schedule and/or (ii) to waive other deficiencies in Seller’s performance, in which case an equitable reduction in the Purchase Order price shall be negotiated.  If Buyer approves a revised delivery date and directs that Seller ship by a method other than that indicated on the face of this Order, Seller agrees to pay any additional transportation charges incurred as a result of such direction.

7.        INSPECTION:  (a) All goods (which term throughout this Order includes without limitation raw materials, components, intermediate assemblies, tools and end products) shall be subject to inspection and test by the Buyer and/or it’s Customer (which term throughout this clause shall include without limitation the Federal Government including its surveillance and/or regulatory agencies) to the extent practicable at all times and places including the period of manufacture and in any event prior to final acceptance by the Buyer and its Customer.  (b) If any inspection or test is made on the premises of Seller or its supplier, Seller without additional charge shall provide all reasonable facilities and assistance for the Safety and convenience of the inspectors in the performance of their duties.  All inspections and tests on the premises of Seller or its supplier shall be performed in such a manner as not to unduly delay the work.  (c) Final acceptance or rejection of the goods shall be made as promptly as practical after delivery, except as otherwise provided in this Order, but failure to inspect and accept or reject goods or failure to detect defects by inspection shall neither relieve Seller from responsibility for such goods as are not in accordance with the Order requirements nor impose liabilities on Buyer therefore.  (d) Seller shall provide and maintain an inspection and process control system acceptable to Buyer and its Customer covering the goods hereunder.  Records of all inspection work by Seller shall be kept complete and available to Buyer and its Customer during the performance of this Order and for such longer periods as may be specified in this Order.

8.        WARRANTIES:  (a) Seller warrants that all goods and services sold hereunder or pursuant hereto will be free of any claim to any nature by any third person and that Seller will convey clear title hereto to Buyer as provided hereunder.  (b) Seller warrants and represents that all goods sold hereunder or pursuant hereto will be of merchantable quality, free from all defects in design, workmanship and materials, and will be fit for the particular purposes for which they are purchased and that the goods are provided in strict accordance with specifications samples, drawings, designs or other requirements (including performance specifications) approved or adopted by Buyer.  (c) Any attempt by Seller to limit, disclaim, or restrict any such warranties or remedies of Buyer, by acknowledgment or otherwise, in accepting or performing this Order, shall be null, void, and ineffective without Buyer’s written consent.  

The warranty period shall commence upon the Owners declaration of commercial operation and continue for one (1) year thereafter or for such other period of time as may be provided in the Purchase Order documents.    

9.        REMEDIES:  If any of the goods are found within a reasonable time after delivery to Buyer to be defective in material or workmanship or otherwise not in conformity with the requirements of this Order, Buyer, in addition to any other rights which it may have under warranties or otherwise, shall have the right, as its option (i) to reject and return such goods at Seller’s expense, in which event such goods shall not be replaced by Seller without prior written authorization from Buyer, or (ii) upon notice to Seller, to take such actions as may be required to cure all defects and/or bring the goods into conformity with all the requirements of this Order, in which event all costs and expenses thereby incurred by Buyer shall be for Seller’s account.  Any and all expenses (including, but not limited to shipping, manufacturing and labor expenses) incurred by Buyer in the exercise of its right under this clause, by law or by statute, shall be reimbursed by Seller.  All rights and remedies of Buyer, whether provided by this Order or by law or statute, shall be cumulative and may be exercised singly or concurrently.

10.     BUYER’S PROPERTY:  Unless otherwise agreed in writing, all tools, equipment or material of every description furnished to Seller by Buyer or specifically paid for by Buyer and any replacement thereof, or any materials affixed or attached thereto, shall be and remains the personal property of Buyer.  Such property (i) shall be identified as “Property of Industrial Parts & Equipment” and shall be safely stored separate and apart from Seller’s property; (ii) shall not be used except in filling Buyer’s Orders and shall not substitute any property for Buyer’s property; (iii) shall be held at Seller’s risk, shall be kept insured by Seller at Seller’s expense in an amount equal to replacement cost with loss payable to Buyer, and (iv) shall be delivered to Buyer promptly upon its written request, in which event Seller shall prepare such property for shipment and shall deliver to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller’s expense.

11.     CHANGES:  The Buyer may at any time, in writing, make changes within the general scope of this Purchase Order, in any one or more of the following:  (i) drawings, designs, or specifications where the goods to be furnished are to be specifically manufactured for the Buyer in accordance therewith; (ii) method of shipment or packing; (iii) place of delivery; and (iv) the amount of Government-furnished-property.  If any such change causes an increase or decrease in the cost of, or the time required for the performance of any work under this Order, whether changed or not changed, an equitable adjustment shall be made in the Order price or delivery schedule, or both, and the Purchas Order shall be modified in writing accordingly.  Any claim by the Seller for adjustment under this clause must be asserted within thirty (30) days from the date of receipt by the Seller of notification of change; provided, however, that the Buyer, if he so chooses, may receive and act upon any such claim asserted at any time prior to final payment under this Order.  Any change in this Order shall be authorized only by a duly executed Purchase Order Amendment hereto.

12.     NON-ASSIGNMENT:  Assignment of this Order or any interest herein or any payment due or to become due hereunder, without the prior written consent of Buyer, shall be void.

13.     SUBCONTRACTING:  Seller shall not subcontract nor delegate performance of all or any substantial part of the work called for under this Order without the prior written consent of Buyer.

14.     COMPLIANCE WITH LAWS:  Seller agrees to comply with the applicable provisions of any federal, state, or local law or  ordinance and all lawful orders, rules, and regulations issued there under, Seller shall also comply with any provisions, representations or agreements, or contractual clauses required thereby to be included or incorporated by reference or operation of law in the contract resulting from acceptance of this Order and dealing with, Equal Employment Opportunity, Employment of Veterans, Employment of the Handicapped, Employment Discrimination Because of Age, Utilization of Disadvantaged Business Enterprises, and the related Acts and Executive Orders as now or hereafter amended or codified.  Seller certifies that it is in compliance with the requirements for nonsegregated facilities set forth in 41 CFR Chapter 60-1-8.  Further, Seller warrants that each chemical substance constituting or contained in goods sold or otherwise transferred to Buyer hereunder is on the list of chemical substances compiled and published by the Administrator of the Environmental Protection Administration pursuant to the Toxic Substances Control Act (15 U.S.C. Sec. 2601 et. seq) as amended.  Further Seller certifies and guarantees that the goods supplied hereunder are in compliance with applicable sections of the Federal Consumer Product Safety Act (15 U.S.C. Sec. 2051 et. seq) as amended, and the Federal Hazardous Substances Act (15 U.S.C. 1261 et. seq.) as amended, and lawful standards and regulations there under.  Further, in accepting this Order Seller represents that the goods to be furnished hereunder were or will be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, including Section 12(a) and Seller shall insert a certificate to that effect on all invoices submitted in connection with this Order.

15.     DISCLOSURE OF KNOWLEDGE OR INFORMATION:  Any knowledge or information which Seller shall have disclosed or may hereafter disclose to Buyer in connection with a request for a quotation or the purchase of goods or the services covered by this Order and Buyer’s Material Schedule, shall not, unless otherwise specifically agreed upon in writing by Buyer, be deemed to be confidential or proprietary information, and shall be acquired free from any restrictions other than a claim for patent infringement as part of the consideration for this Order.

16.     FOR WORK ON BUYER’S OR ITS CUSTOMER’S PREMISES:  If Seller’s work under this Order involves operations by Seller on premises of Buyer or one  of its customers, Seller shall take all necessary precautions to prevent the occurrence of any injury to person or damage to property during the progress of such work.  Except to the extent that any such injury or damage is due solely and directly to Buyer’s or its customer’s negligence, as the case may be, Seller shall defend and indemnify Buyer against any claim which may result in any way from any act or omission of the Seller, its agents, employees or subcontractors.  Seller shall maintain Comprehensive General Liability (including Contractual Liability coverage insuring the liabilities assumed above), Automobile Liability and Employers’ Liability insurance with limits as reasonably required by Buyer, as well as appropriate Workers’ Compensation insurance as will protect Seller from all claims under any applicable Workers’ Compensation and Occupational Disease Act.  Seller shall furnish to Purchaser a Certificate of Insurance completed by its insurance carrier(s) certifying that the required insurance coverage’s are in effect and will not be cancelled or materially changed until ten days after prior written notice has been delivered to the Buyer.  For and in consideration of this Order, Seller hereby submits each of its employees, agents, representatives, vehicles and equipment which enter or leave Buyer’s premises to customary plant security procedures in effect at said premises.

17.     INSOLVENCY:  If Seller ceases to conduct its operations in the normal course of business including inability to meet its obligations as they mature or if any proceeding under the bankruptcy or insolvency laws is brought by or against Seller, or a receiver for Seller is appointed or applied for an assignment for the benefit of creditors is made by Seller, Buyer may cancel this Order without liability except for the deliveries previously made or for goods covered by this Order then completed and subsequently delivered in accordance with all terms of this Order.

18.     TERMINATIONS:  The buyer may terminate all or any part of this Order at any time by written notice to Seller.  Upon termination, Buyer and Seller shall negotiate reasonable termination charges which will be identified by Seller within 30 days of termination.

19.     INFORMATION:  Seller shall keep confidential any technical, process or economic information derived from drawings, specifications and prototype articles, and other data furnished by Buyer in connection with this Order and shall not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining Buyer’s prior written consent.  Except as required for the efficient performance of this Order, Seller shall not use such information or make copies or permit copies to be made with prior consent, this notice shall be provided thereon.  Upon completion of termination of this Order, Seller shall promptly return to Buyer all materials and any copies thereof; such request may be made at any time during or after completion of Seller’s performance.  The obligations under this clause shall survive the cancellation, termination or completion of this Order.

20.     AGREEMENT AND MODIFICATION:  This Order together with all documents and provisions expressly incorporated herein by reference shall constitute the entire Agreement between the parties.  No course of prior dealings between the parties and no usage of trade shall be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.

21.     NON-WAIVER:  No claim or right arising out of a breach of this Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party.  The failure of Buyer to enforce at any time or period of time any of the provisions hereof shall not be construed to be a waiver of such provisions nor the right of Buyer thereafter to enforce each and every such provision.

22.     PATENT INDEMNITY – PURCHASE ORDERS:  The Seller shall defend any suit or proceeding brought against the Buyer or its Customers so far as based on claim that any goods or any part thereof furnished under this Order constitutes an infringement of any patent of the United States, if notified promptly in writing and given authority, information and assistance (at the Seller’s expense) for the defense of the suit or proceedings, and the Seller shall pay all damages and costs awarded therein.  In case the use of said goods or part is enjoined in such suit, the Seller shall at its own expense and at its option, either procure for the Buyer and its Customers the right to continue using said goods or part, or replace the infringing item with a non-infringing equivalent or modify it so it becomes non-infringing, or upon showing inability to do any of the foregoing, shall remove said goods and refund the purchase price and the transportation and installation costs thereof.  Except as stated in the foregoing, there shall be no liability of the Seller to the Buyer or of the Buyer to the seller with respect to patent infringement involving said goods or any part thereof.

23.     DRAWINGS:  Unless otherwise specifically agreed in writing by Buyer, any check or approval of drawings by Buyer, will be for Seller’s convenience and will not relieve Seller of its responsibility to meet all requirements of this Order.

24.     PLANT ACCESS:  Seller will allow representatives of Buyer and Buyer’s Customers access to facilities involved in performing this Order for purposes of reviewing the status and progress of production and witnessing any tests and inspection.  Such access will no relieve Seller of any of its obligations.

25.     INDEMNIFICATION:  Seller shall be responsible for and indemnify the Buyer and the Buyer’s Customers  against all losses, claims, expenses and damages which may result in any way from any accident, injury, libel or damage either to person or property or from death of any persons by reason of any act or omission on the part of the Seller, its agents, employees, or subcontractors except to the extent that the accident, injury, damage, or death is due solely and directly to the negligence of the Buyer.  Seller shall at all times maintain such liability, property damage, and employee liability insurance as will protect Buyer from any or all of the foregoing risks, and shall supply, upon request of Buyer, certificates satisfactory to Buyer evidencing such coverage.

26.     SUBSTANCE ABUSE:  The parties agree that all WORK to be performed under this Purchase Order shall be performed in compliance with SELLER’s program established for the project for maintaining a drug-free work force and work place.  SELLER is responsible for adopting and maintaining its own program for assuring a drug-free work force and work place for its employees, a conformed copy of the current version of which shall be furnished to BUYER.  Should such program be updated or revised from time to time, SELLER shall furnish BUYER conformed copies of such program.  Nothing contained in this Section shall be deemed to relieve SELLER of its responsibilities under this Purchase Order or to imply any approval by BUYER of SELLER’S Program contents or documents, or to make BUYER  responsible for any act or omission of SELLER with respect to compliance or noncompliance with said program or laws or regulations relating to a drug-free work force or work place.  SELLER shall require that its entire subcontractor’s maintain a drug-free work force and work place.

27.     CONSEQUENTIAL DAMAGES:  Notwithstanding anything to the contrary herein this Agreement, under no circumstances shall the SELLER or its subcontractors, consultants, or vendors, or their respective officers, or employees be liable or held responsible for consequential, incidental, special, or indirect loss or damage including, but not limited to, loss of use of the Project or of adjacent facilities, loss of product, cost in excess of estimated cost, financing cost, or loss of interest, earnings, or profits, whether such loss or damage arises in Purchase Order, negligence, strict liability or otherwise.

28.     INVOICING AND PAYMENT:  SELLER shall submit to Buyer properly documented invoices as instructed and authorized by the Purchase Order.  

Each invoice shall become payable, in full, after Buyer’s Receipt of the invoice and approval, provided that the invoice is proper in all respects.  

29.     ENVIRONMENTAL MATTERS:

A.      HAZARDOUS SUBSTANCES:  Seller warrants that except as specified on the face of the order, none of the chemical substances constituting or contained in the product(s) sold or otherwise transferred to purchase under this order are “HAZARDOUS SUBSTANCES” as defined in the comprehensive, environmental response, compensation and liability act (CERCLA), and seller Agrees to supply purchaser with any and all required data safety sheets.

B.       ASBESTOS:  Seller agrees to provide products which are free of asbestos unless seller has notified purchaser in advance and has obtained purchaser’s prior written consent to the use of asbestos.  Seller agrees to include this clause in any subcontracts issued hereunder.  If seller intends to rely upon any drawing which requires or permits the use of asbestos, written notice to, and approval by, the cognizant buyer must be obtained prior to such use.

C.       USE OF CADMIUM:  Unless specifically defined as a requirement by Industrial Parts & Equipment drawings or specifications, the use of cadmium plating or nickel cadmium plating is strictly prohibited in the manufacture of this product.  The use of cadmium plating or nickel cadmium plating is strictly prohibited on all tooling, fixturing, and test equipment that is used for manufacturing, assembly, test or material handling of the product unless seller has notified purchaser in advance and has obtained its prior written consent to such use.  Approval shall not be granted where there is a potential for seller’s product to come into contact with titanium containing items.

D.      OZONE DEPLETING SUBSTANCES (“ODS’S”):  Supplier agrees to comply with the U.S. Clean Air Act Amendments of 1990 regarding warning statements on products manufactured with ODS’S, products containing ODS’S, and containers containing ODS’S.  The need for warning statements the specific wording of statements and the placement of statements shall be in accord with requirements of the U.S. Environmental Protection Agency Implementing Regulations.  Any usage of Class I ODS’S is subject to evaluation and approval of purchaser or the U.S. Government.  For purchases of materials to be supplied to the U.S. Government, seller shall also comply with any labeling requirements arising under the Federal Acquisition Regulations (FAR).  

Supplier will eliminate the use of Class I ODS’S to the maximum extent possible.  Any usage of Class I ODS’S which cannot be eliminated is subject to evaluation and approval by the purchaser or the U.S. Government.  Supplier will notify purchaser of any such use of Class I ODSS’S which cannot be eliminated and will provide purchaser with any requested information which may be required in order to complete the evaluation and approval of the continued usage.  

E.       REPRESENTATIONS AND WARRANTIES:  Seller represents and warrants that it shall perform all activities related to its manufacturing processes in compliance with all applicable Federal, State and Local Environmental, Health and Safety Laws and Regulations.  

Seller represents and warrants that it will use best efforts to prevent and minimize accidental releases of hazardous substances or constituents to the environment, as well as prevent and minimize risk of endangerment to human health or the environment from any manufacturing process.  

F.       ENVIRONMENTAL CLAIMS:  Seller agrees to indemnify, release, defend and hold harmless purchaser, its Directors, Officers, Employees, Agents, Representatives, Successors and Assigns, whether acting in the course of their employment or otherwise, against any and all Suits, Actions, or Proceedings, at law or in equity, and from any and all Claims, Demands, Losses, Judgments, Damages, Costs, Expenses, or Liabilities resulting from:  (1) Death or injury to any person, including officers and employees of seller and those of purchaser, arising out of or in any way connected with seller’s failure to comply with this Article 30, (2) Damage to any Property, Real or Personal, including Property of Seller and that of Purchaser, arising out of or in any way connected with seller’s failure to comply with this Article 30, (3) Any and all pre-existing conditions of Real or Personal Property of Seller, or (4) Any failure to comply with any Federal (including FAR/DFAR Clauses), State of Local Environmental, Health, or Safety requirements.  Seller agrees to include this clause in any subcontracts issued hereunder.

G.      MATERIAL OWNERSHIP:  Seller and Purchaser agree that all times prior to deliver and acceptance by Purchaser of the goods, all raw materials, wastes and work-in-progress shall remain the property of seller, except as otherwise provided herein.

H.      WASTE MANAGEMENT:  Seller shall be directly and solely responsible for managing all wastes associated with its manufacturing process.  Seller shall manage any and all such remain the property of seller, except as otherwise provided herein.

I.         WASTE DISPOSAL CERTIFICATIONS:  Seller agrees to generate and maintain detailed records certifying the property disposal of all wastes associated with its manufacturing process, including wastes generated from the remediation or cleanup of any releases, leaks or spills.  Such records will include the names and addresses of any treatment, storage or disposal facility receiving such wastes, the amount of waste received, and the dates of shipment and receipt.  Seller shall maintain all records relating to environmental compliance and waste disposal.

J.        PROCESS FLOW DIAGRAM AND MATERIAL BALANCE:  Where seller is relying upon Industrial Parts & Equipment supplied drawings to provide products, upon request by purchaser, seller agrees to make available to purchaser detailed process flow diagram for its manufacturing processes, identifying unit quantities of raw material and associated waste.  The Process Flow Diagram will contain a material balance for the processes and will indicate the ultimate fate of each raw material or associated waste.

K.      NOTIFICATION OF SIGNIFICANT EVENTS:  Seller agrees to notify purchaser in writing within five days after learning of any event involving any of its manufacturing processes that may affect seller’s ability to comply with its obligations under this purchase order, including but not limited to, any spill, leak or release to the environment which also requires notification to a State or Federal Agency, including, but not limited to:  (A) The date of release; (B) The quantity and type of material released; (C) Efforts to clean up the material released; and (D) Efforts to mitigate impacts from the release.  Notices shall be provided to Industrial Parts and Equipment, 3428 Hauck Road , Cincinnati , OH   45241 .

L.       HAZARDOUS MATERIAL IDENTIFICATION:  Seller shall identify hazardous materials contained in items delivered to purchaser, provide Material Safety Data Sheets (MSDS) for such items, and where applicable, comply with the OSHA Hazard Communication Standard, 29 CFR 1910.1200 (“HAZCOM”).  For each such material, identification shall reference the stock or part number of the delivered item.  Hazardous materials include, but are not limited to, materials embedded in a delivered product in such a manner as to present a potential for personal injury or harm or property damage in the course of normal use, repair, accidents or disposal.  All MSDS Forms and Hazard Warning Labels required under this section and HAZCOM shall be provided to Industrial Parts and Equipment, 3428 Hauck Road , Cincinnati , OH   45241 .

M.     SELLER COMPETENCE:  Seller represents and warrant that it possesses the facilities skills, knowledge and expertise to handle and provide the products and/or services specified herein in a safe and responsible manner, and that all persons, including any subcontractors, involved in handling any materials processed or provided for under this agreement will be shown any MSDS associated with such materials and be advised of its safe and proper use and handling.