Terms and Conditions for Purchase Orders

1. ACCEPTANCE OF CONTRACT: Seller is bound by this order, and its terms and conditions when it executes and returns the acknowledgment copy, when it otherwise indicates its acceptance of this order or when it delivers to the buyer any of the goods ordered or renders for the buyer any of the services ordered. This order expressly limits acceptance to the terms and conditions stated any additional or different terms proposed by the Seller are rejected unless expressly consented to in writing by RPM Industries, LLC, the Buyer.
2. AMENDMENTS: The parties agree that this purchase order, including the terms and conditions on the face and reverse side hereof together with any attachments, contains the complete and final contract between Buyer and Seller; that no agreement or understanding to modify this contract shall be binding upon Buyer unless in writing and signed by Buyer's authorized representatives. All specifications, drawings, samples and dates submitted to Seller with this order or referred to by this order are part of this order.
3. CHANGES: (a) The Buyer reserves the right to make changes at any time in any one or more of the following: 1) Specifications, drawings and data incorporated in this contract. 2) Methods of shipping or packing. 3) Place of delivery. 4) Time of delivery. 5) Manner of delivery and 6) Quantities. (b) Any claim by the Seller for adjustment under this clause must be approved by the Buyer in writing. Price increases shall not be binding on Buyer unless evidenced by a written document signed by Buyer.
4. DELIVERY: (a) If delivery of goods is not made in the quantities and at the time specified, or performance of service is not complete at the times specified, Buyer reserves the right without liability, and in addition to its other rights and remedies, to take the following actions: 1) To direct routing of goods (the cost difference in expedited routing and the other routing cost shall be paid by Seller); 2) To terminate this contract by notice, effective when received by Seller, concerning goods not yet shipped or services not yet performed; and 3) to purchase substitute goods or services elsewhere and charge seller with any loss incurred. (b) When the seller has reason to believe that deliveries will not be made as scheduled; written notice setting forth the cause of the anticipated delay must be given immediately to Buyer. (c) Buyer will have no liability for payment for goods delivered to Buyer which are in excess of amounts specified in this contract. Excess goods shall be subject to rejection and return at Seller's expense. Buyer will not be liable for any material or production costs incurred in excess of the amount or in advance of the time to meet Buyer's delivery schedules.
5. INSPECTION AND ACCEPTANCE: (a) Payment for goods under this contract does not constitute acceptance. All goods purchased are subject to inspection at Buyers destination either before or after payment or before or after acceptance, at Buyer's option. Buyer reserves the right to reject and refuse acceptance of goods which are not in accordance with the instructions, specifications, samples, drawings and data or Seller's express or implied warranties. Goods not accepted will be returned to Seller for full credit or replacement at Buyer's option and at Seller risk and expense. (b) Buyer shall not be liable for failure to accept any part of the goods, if this failure is the result of any cause beyond the control of Buyer. These causes include fire, floods, strikes, work stoppage, casualties, delays in transportation and total or partial shutdown of Buyer's plant for any cause. Acceptance of any part of the goods does not bind Buyer to accept future shipments, nor deprive it of the right to return goods already accepted. (c) Acceptance of all or any part of the goods shall not be deemed to be a waiver of Buyer's right to cancel or to return all or part of the goods because of failure to conform to this contract, or be reason of defects, latent or patent, or other breach of warranty, or to make any claim for damages, including manufacturing cost, damage to materials, or damage caused by improper boxing, crating or packing, and loss of profits or other special damages occasioned by the Buyer. These rights are in addition to other remedies provided by law.
6. PACKING, CONTAINERS AND DRAYAGE: (a) No charges for packing, containers or drayage will be allowed unless specified on the face of this order. Seller shall be liable for damage to materials or articles described herein caused by improper boxing, crating, packing or drayage. (b) Seller shall be responsible for all shortages with carrier regardless of F.O.B. point.
7. SELLER'S WARRANTIES: Seller warrants that the goods furnished are of mercantile quality and fit for Buyer's purposes and that they shall conform with Buyer's instructions, specifications, drawings, samples and data. Seller further warrants that the goods furnished conform to all representations, affirmations, promises, descriptions, samples or models forming the basis of this contract. Seller further warrants that all services performed for the Buyer will be performed in a competent, workmanlike manner and shall be free from faults and defects. These warranties are in addition to any warranties of additional scope given by Seller to Buyer.
8. PROPERTY OF BUYER: (a) Property of every description including all tooling, tools, equipment, and parts manufactured by Seller for Buyer, equipment and material furnished or made available to Seller, title is in Buyer, any replacement remain the property of Buyer. This tooling and equipment shall not be modified without the written consent of the Buyer. This property shall be plainly marked or otherwise adequately identified by Seller as "Property of RPM Industries, LLC" and shall be safely stored separately and apart from Seller's property. Seller shall not use property except for performance of work herein or as authorized in writing by Buyer. Buyer's property while in Sellers control or possession shall be kept in good condition, (reasonable wear expected) shall be held at Seller's risk and shall be kept insured by Seller at its expense in an amount equal to the replacement cost with loss payable to Buyer, and Buyer shall have right of entry for such purpose without any liability whatsoever to Seller. As and when directed by Buyer, Seller shall disclose the location of such property and/or prepare it for shipment and ship it to Buyer or his assignee, in as good condition as originally received by Seller (b) if Seller fails to return Buyer's property within thirty (30) days after Buyer's request, Seller agrees to pay Buyer three (3) times the value of the property not returned. Seller also agrees to pay Buyer $500.00 per day each day the property is returned late. The property shall be deemed returned when Buyer receives possession of same.
9. PROPRIETARY RIGHTS: All information in the nature of request for quotations, samples, designs, drawings, specifications, engineering data for production and/or product know how, which is supplied to the Seller by the Buyer for the performance of this contract, shall be kept confidential by the Seller. Seller agrees that it will not duplicate drawings, tooling equipment or other property belonging to Buyer. Seller also agrees not to modify, adapt, or to assist anyone in modifying or adapting the knowledge supplied by the Buyer for Seller's or others' use. Seller will use and cause its employees and agents to use extreme caution not to disclose any such information either directly or by incorporation of such information in or its use in manufacturing products for others. Seller agrees to assign to the Buyer and not otherwise to make use of any improvement, discovery or invention, (patentable or not) conceived or reduced to practice in the performance of this contract by any employee of the Seller or others working under Sellers direction. Seller shall deliver to the Buyer any and all information relating to any improvement, discovery or invention, and shall cause its employees or others subject to Seller's instructions to sign as appropriate all instruments necessary or convenient to enable the Buyer to file applications for patents and obtain title thereto. These proprietary rights and obligation of confidentiality survives the expiration of termination of this contract. No right, title or license is granted hereby to seller, expressly or by implication, with respect to any patent, Patent application or other propriety right of Buyer.
10. INDEMNIFICATION: (a) Seller agrees to indemnify and protect Buyer against all liability, claims or demands for injuries or damages to any person or property growing out of the performance of this contract. In the event Buyer's tooling, machinery or equipment is used by Seller in the performance of any work that might be required under this contract, this tooling, machinery or equipment shall be considered as being under the sole custody and control of Seller during the period of such use by Seller. (b) Seller agrees to defend at its expense any and all suits founded on a claim that the goods sold under this contract infringe any patent rights, design, trademark or name or other protected rights of any third party; the Seller agrees to indemnify the Buyer under this contract against any loss, costs, expenses or judgments resulting from such suits.
11. CANCELLATION: Buyer shall have the right to cancel for default all or any part of the undelivered portion of this contract if Seller does not make deliveries as specified in the delivery schedule. If Seller breaches any of the terms hereof including warranties of Seller, if Seller makes arrangement, extension, or assignments for the benefit of creditors, if Seller dissolves or otherwise ceases to exist or liquidates all or substantially all of its assets, if Seller becomes insolvent, or if Seller generally does not pay its debts as they become due. Such right of cancellation is in addition to and not in lieu of any other remedies, which Buyer may have in law or equity.
12. TERMINATION: (a) The Buyer may terminate performance of work under this order in whole or part by written notice of termination, whereupon Seller will stop all work on the date notice is received. Seller will promptly advise the Buyer of the quantities of applicable work and material on hand or purchased prior to termination and the most favorable disposition that the Seller can make thereof. Within 90 days after receipt of a notice of termination, Buyer will have the right to check such claims by inspecting and auditing Seller's records, facilities, work in process and any raw material allocable by the terminated work. Buyer will make no payments for unfinished work, work in process or raw material fabricated or procured by the Seller in excess of any order or release. Payments made under this clause shall not exceed the agreement price specified in this order less payments otherwise made or to be made and adjustments shall be made reducing the payment for cost of completed work, work in process and raw material to reflect on a pro-rate basis any indicated loss on the entire contract had it been completed. Upon an agreed final payment, Seller is to receive under this clause, Seller at Buyer's direction will ship to Buyer all completed work, work in process, and raw material. Buyer will then make payment to Seller in Buyer's normal manner. (b) Payment under this clause constitutes the Buyer's only liability in the event this order is terminated. The provisions of this clause will not apply to any cancellation by the Buyer for default by the Seller or for any other causes allowed by law or under this order.
13. WAIVER: Buyer's failure to insist in any one or more instances upon the performance of any of the terms, convenants or conditions of this contract or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, convenants or conditions or the future exercise of such right, but the obligation of Seller with respect to such future performance shall continue in full force and effect.
14. APPLICABLE LAW: The Seller agrees that the law of the State of Pennsylvania govern this contract and that Seller agrees to submit to the jurisdiction of the courts of Pennsylvania if any provision of the contract is held to be invalid, the remainder of the contract shall not be affected thereby.
15. COMPLIANCE WITH APPLICABLE LAWS: Seller agrees that, in the performance of this contract, it will comply with all applicable laws, statues, rules, regulations or orders of the United States government or of any state or political subdivision thereof.
16. ASSIGNMENT: None of the sums due or to become due nor any of the work to be performed under this contract shall be assigned nor shall Seller subcontract for complete or substantially completed material called for by this contract without Buyer's prior written consent.
17. GOVERNMENTAL AND SAFETY CONTRAINTS: All materials purchased that are used in part manufacture shall satisfy current governmental and safety constraints on restricted, toxic, and hazardous materials, as well as environmental, electrical, and electromagnetic considerations applicable to the country of manufacture and sale.

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