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PURCHASE ORDER TERMS AND CONDITIONS

Purchase Order Constitutes Entire Agreement
This Purchase Order is expressly limited to and made conditioned upon the terms and conditions on the face and reverse side hereof, and constitute the entire agreement between Buyer and Seller. 

Reference to Seller’s bids or proposals, if noted on this purchase order, shall not affect the terms and conditions hereof, unless specifically provided to the contrary herein, and no other agreement, quotation, or sales note in any way modifying any of said terms and conditions will be binding upon Buyer, unless made in writing and signed by Buyer’s authorized representative.

Contract Formation
Buyer shall not be bound by this Purchase Order until Seller executes and returns to Buyer the acknowledgment copy of the Order.  Seller shall be bound by this Order and its terms and conditions when it executes and returns the acknowledgment or when it delivers to Buyer any of the items ordered, or renders for Buyer any of the services ordered herein.  This Order expressly limits acceptance to the terms stated herein, and any additional or different terms proposed by the Seller or rejected unless expressly accented to in writing.  No contract shall exist except as herein above provided.

Price and Cash Discount
The Price set forth on the face hereof, if any, is the firm price and Buyer shall not be liable for any price increases of any nature.  Seller warrants that the prices for the goods are not less favorable than those currently extended to any other customer for the same or like articles in such quantities, either generally or for any one sale to any other customer, from the date of acceptance of this order to the date the goods are invoiced by Buyer, Seller agrees to reduce the prices hereof correspondingly.  Seller’s total price shall include any Federal, State or local sales, use or excise taxes levied upon or measured by the sale price or use of the goods.  All such taxes, lawfully applicable, shall be listed separately on Seller’s invoice.

Delivery and Materials
Promptness of delivery is of the essence of this order.  Deliveries are to be made both in quantity and at a time that is specified on the reverse side hereof in schedules furnished hereunder (or otherwise) by Buyer.  In the event of any late delivery, Buyer may, at its option, cancel this Purchase Order, partially cancel this Purchase Order, vary delivery terms hereunder, or purchase substitute items or services elsewhere.  Any losses sustained or cost incurred by Buyer by reason of late delivery of items or rendering of services shall be paid to Buyer by Seller.

Quality
Seller expressly warrants that all goods and/or work ordered according to plans, drawings, specifications or samples furnished or approved and accepted by Buyer, which are hereby made a part hereof as if fully set out herein, will conform thereto; or if not so ordered will be of the highest quality and free from defects in materials and workmanship (including defects in design); will be merchantable; will be fit and sufficient for the use and purposes intended by Buyer; will be free of all liens and encumbrances; and sale or use of the materials delivered hereunder either alone or any combination of other material, will not infringe or contribute to the infringement of any patents in the United States or any foreign country or result in a violation of the laws relating to unfair competition or a claim arising thereunder.  Seller agrees to indemnify and hold Buyer and its customers harmless from any and all liabilities, including all costs, losses, expenses and attorney fees, which may be incurred by Buyer for damages and injuries arising out of any defect in a material or design delivered or furnished hereunder or any breach of Seller’s warranties.

Seller agrees that these warranties shall survive acceptance of the items.  Said warranty shall be construed as conditions as well as warranties and shall run to both Buyer and its customers, and shall be in addition to any warranties of additional scope given to Buyer by Seller.  If specifications are not met, material may be returned at Seller’s expense.

Patent Indemnification
By accepting this order, Seller agrees to defend at Seller’s own expense all suits, actions, or proceedings in which Buyer any of Buyer’s distributors, dealers customers or users of any of Buyer’s products are made defendants for actual or alleged infringement or any U.S. or foreign patents, trademarks or copyrights or for actual or alleged violation of the unfair competition laws or any claim arising thereunder resulting from the use or sale of the goods purchased hereunder, either alone or in combination with other materials, and further agrees to pay and discharge any and all judgments or decrees which may be rendered in any such suit, action or proceedings against such defendants therein.  Buyer shall notify Seller in writing of any suit filed against it or their customers on account of any such infringement or alleged infringement, and at Seller’s request shall give Seller control of the defense of such suit, insofar as Buyer has the authority to do so, and information and assistance for the same, all at Seller’s expense.  Buyer and the party against whom suit is brought, may be represented by their own counsel in any such suit at Seller’s expense.

Risk of Loss
Seller shall bear the full risk of loss of any goods purchased pursuant hereto until goods are delivered to and received by Buyer.  Seller specifically bears the risk of loss of any goods delivered to a common carrier whether or not Seller is responsible to pay for transportation.

Performance of Work
If this order calls for work to be performed by Seller, such work and all materials used therein shall be at the risk and expense of Seller prior to acceptance by Buyer and if such work is performed by Seller upon any premises owned or controlled by Buyer or Buyer’s customer, Seller will keep such premises and work free and clear of mechanics’ liens.

Whenever Seller shall have in its possession any property belonging to Buyer and/or Buyer’s customer, Seller shall be deemed an insurer of all such property.

Seller will indemnify, hold harmless and defend Buyer and Buyer’s customer from all claims, demands or suits made or brought under the Workers’ Compensation Law of any state in which work is performed and from all loss, expense, property damage or personal injury in any manner rising out of or incident to the performance of this order.

If Buyer’s machinery or equipment is used by Seller in performance of work hereunder, it shall be under Seller’s sole custody and control for the period of such use by Seller, and shall any person in the employ of Buyer be used to operate said machinery or equipment, such person shall be deemed during such period of operation to be an employee of Seller.

In connection with the performance of work under this purchase order, the Equal Opportunity clauses as set forth in Section 202 of Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, and Section 402 of the Vietnam Era Veterans Readjustment Act of 1974, as amended are incorporated by reference.

Confidential Information
Seller agrees not to disclose to any person outside of his employ, and not authorized by Buyer to receive it, any information pertaining to Buyer’s affairs, and particularly its engineering or technical developments, and upon termination of this purchase order, will return to Buyer upon request all drawings, blueprints, descriptions, or other papers, which embody such confidential information.  Seller warrants and agrees that such confidential information shall not be utilized in whole or in part by Seller or on behalf of any other person, firm or corporation without the prior written consent of Buyer.

Price
If price is not stated on order, Seller agrees to invoice at lowest prevailing market price.

Taxes
Seller agrees to list separately on the acceptance hereof, all sales and/or excise taxes applicable to this order and agrees that if said sales and/or excise taxes are not so separately listed that the amount thereof will be considered as included in the total price shown on this order.

Packing
No charge allowed by Buyer for packing or boxing unless specified herein.

Patents
The Seller shall hold and save the Buyer, its officers, agents, employees and customers harmless from liability of any nature of kind for or on account of the use, sale or lease of any patented or unpatented invention, article, or appliance furnished or used hereunder.

Assignment
The terms and conditions contained herein have been issued in reliance upon Sellers reputation and good standing.  Therefore, this order may not be assigned by Seller without the written consent of Buyer.

Complete Agreement
This agreement constitutes the entire and only agreement between the parties hereto and any representation, affirmation of fact and course of prior dealings, promise or condition, in connection therewith, if not incorporated herein, shall not be binding upon Buyer.  No waiver or alteration or modification of any of the provisions hereof shall be binding unless in writing and signed by a specifically authorized representative of Buyer.

Cancellation
Buyer may, at any time, cancel all or any part of the work covered by this order, and terminate this purchase order in whole or in part, even though Seller is not then in default.  Seller will, in accordance with notice of cancellation, terminate work under any orders or subcontracts outstanding, place no further orders or subcontracts, and take all steps necessary to protect the material or property in Seller’s possession in which Buyer has or may acquire an interest.  In the event of cancellation, Buyer’s obligation, if any, shall be limited to reasonable compensation for materials completed or services furnished in accordance with the terms of this order and not previously paid for.  In no event will Buyer be responsible for materials which are in excess of quantities specified in the schedules furnished nor for items manufactured in advance of the schedules, notwithstanding the quantities specified in any orders outstanding for the materials, nor for services which go beyond the face of this order.  If, however, cancellation arises out of Seller’s breach of any condition hereof, including breach of warranty, or by Seller’s delay, Seller shall not be entitled to any claim for compensation, and Buyer shall have against Seller all remedies provided by law and equity.

Merger and Amendments
This Purchase Order and any contract formed between the parties shall include the terms and conditions set forth on the face and back hereof and is intended by the parties as the final expression of their agreement, merging all prior negotiations and agreements, whether written or oral.  No agreement or understanding to modify this contract shall be binding upon Buyer unless in writing and signed by Buyer.  All specifications, drawings and data submitted to Seller with this order are hereby incorporated herein and made a part hereof.

Inspection
All materials or equipment purchased hereunder are subject to inspection and approval at Buyer’s destination.  Buyer reserves the right to reject and refuse acceptance of items which are not in accordance with Buyer’s instructions, specifications, drawings and data or Seller’s warranty.  Buyer will charge Seller for the cost of inspection merchandise rejected.  Items not accepted will be held for Seller’s instruction at Seller’s risk and if Seller so directs, will be returned at Seller’s expense.  No goods returned hereunder shall be replaced without a new Purchase Order.  Payment for any article hereunder shall not be deemed an acceptance thereof.

Insolvency
Buyer shall have the unrestricted right to cancel this purchase order in the event of the happening of any of the following or any other comparable events, in which event Buyer shall have no liability for lost or anticipated profits of Seller; (i) Seller’s insolvency or commission of an act of bankruptcy;  (ii) Commencement of proceedings by, for or against Seller under any law relating to Bankruptcy or the relief of debtors; (iii) The appointment of a receiver or trustee for Seller; (iv) The execution by Seller of an assignment for the benefit of the creditors; and (v) The determination by Buyer, in its sole judgment, that Seller’s financial condition is such as to endanger its performance hereunder.

Nonwaiver
No waiver or failure to enforce compliance with the terms hereof by Buyer shall constitute a waiver of Buyer’s rights to insist upon strict compliance with the terms of this order thereafter.

Governing Laws
This Purchase Order and any dispute which may arise from this Purchase Order or any goods purchased hereunder shall be governed by the laws of the state of Ohio.

Compliance of Laws
Seller shall, in the performance of work under this order, fully comply with all applicable Federal, State and local laws and regulations, and shall indemnify and hold Buyer harmless from any costs, loss or liability resulting from Seller’s failure of compliance.

Arbitration
Any dispute arising between Buyer and Seller based upon this Purchase Order or the goods purchased pursuant hereto will be resolved by arbitration in Cleveland, Ohio, in accordance with the Rules of the American Arbitration Association, and the award of the arbitrator(s) shall be final and binding upon the parties.  In the event the demand for arbitration is filed pursuant hereto, the parties shall have the same rights to discovery under the Ohio Rules of Civil Procedure as if the dispute had been filed in an original action in an Ohio Court of original jurisdiction, and any Court located in Cleveland, Ohio, shall have jurisdiction and shall be authorized to enforce said rights as if the entire dispute were pending before said Court.

Headings
The headings used in this Agreement are solely for the convenience of the parties and shall have no force or effect upon the interpretation of any provisions hereof.

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