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Purchase Order General Terms / Conditions

  1. Definitions. “Buyer” means Powmet, Inc.. “Seller” means the business entity to which this purchase order is addressed, including Seller’s principal if Seller is acting as a broker or agent. “Order” means this purchase order, including all terms and conditions on the face in compliance with all applicable requirements.
  2. Contract Formation. If this Order is deemed to constitute acceptance of an offer, such acceptance is expressly made conditional on Seller’s assent to the terms of this Order, and shipment of any part of the Goods or other commencement of performance will be deemed to constitute such assent. Any additional or different terms in any offer or acknowledgement by Seller are expressly rejected by Buyer and will not be deemed accepted by Buyer unless Buyer’s acceptance thereof is in writing and specifically refers to each such additional or conflicting term.
  3. Invoicing: Payment. A separate original invoice is required for each shipment under this Order. Buyer will pay for the Goods within the terms of contract.
  4. Order Changes. Buyer may at any time, by written notice to Seller, make changes in the specifications, quantities, delivery schedules and shipping instructions under this Order. If any such change increases or decreases the cost of performing or the time required for performance of this Order, an equitable adjustment in prices and/or schedules will be considered by Buyer provided that any claim by Seller for such adjustment is presented in writing with supporting documentation to Buyer within 10 business days from the date of Buyer’s notice to Seller. No changes whatsoever will be initiated by Seller without Buyer’s written approval.
  5. Taxes. Prices stated include all taxes directly applicable to the Goods unless otherwise specified. Notwithstanding the foregoing, Buyer will only be liable for such federal, state and local taxes that Seller is required by law to collect from Buyer.
  6. Packing. Goods for Delivery. Goods will be suitably prepared for shipment to secure the lowest transportation rates (unless a premium method is specified on the face hereof) and comply with all carrier regulations. No charges are allowed for packing, crating, freight express, or cartage unless authorized by Buyer.
  7. Routing. Risk of Loss. Excess Shipments and Delays. (a) Time is of the essence in the performance of this Order by Seller and Seller will take all necessary action, both normal and extraordinary, to ensure timely deliveries. (b) Buyer may select mode of transportation, routing of, and carrier for the Goods. Seller will be liable for excess transportation costs resulting from deviation from Buyer’s Instructions or promised delivery dates. (c) Buyer’s weight and count are conclusive, and Buyer will have no liability for payment for Goods delivered in excess of the quantity ordered. Excess Goods may be returned to Seller at Seller’s expense. (d) If, prior to time for delivery of the goods, Seller has reason to believe that it will be unable to meet its delivery schedule, Seller will immediately notify Buyer in writing, will indicate the cause of delay and will use its best efforts to cure the anticipated delay. Upon receipt of notice and the anticipated delay or upon occurrence of an actual delay, Buyer may (i) direct expedited routing of Goods, with excess costs paid by Seller, or (ii) cancel the Order and purchase substitute Goods elsewhere, with resulting excess costs and expenses pay by Seller.
  8. Inspection of Goods; Rejection of Goods and Revocation of Acceptance. Buyer will have the right but not the obligation to inspect the Goods before paying for or accepting them. Buyer’s action in paying for or accepting any goods will not constitute a waiver of any rights or remedies of Buyer, including Buyer’s right to revoke acceptance and return any part of the goods or the right to make a claim for damages because of the failure of the goods to conform to this Order. For all non-conforming Goods, Seller will provide Buyer, at Buyer’s election, a full refund or replacement of the Goods, at Seller’s risk and expense, including transportation costs both ways. Buyer may, at its option, purchase substitute Goods in lieu of non-conforming Goods, and Seller will be liable for the difference in costs, less expenses saved by Buyer. Buyer’s rights herein will be in addition to all other rights of Buyer under applicable law.
  9. Quality; Warranties. Seller warrants that all Goods delivered will strictly conform to the Order and all applicable specifications, quality documents, will be merchantable and fit for their intended purpose, and will meet all applicable industrial and governmental safety standards. Seller further warrants that Seller will have title to and the right to sell such Goods at the time of delivery. Seller will also transfer to Buyer the warranties on goods and services incorporated into Goods. All warranties will survive any inspections, delivery, acceptance or payment by Buyer, and will run to Buyer, its successors, assigns, customers and users of Goods. Seller will repair or replace, without cost to Buyer, all defective non-conforming Goods, and pay for all other resulting damage, loss or claims arising out of defective or non-conforming Goods. Seller’s warranties with respect to repaired or replaced Goods will be the same as the warranties given with respect to the original Goods. No approval of Seller’s designs, samples, test results, procedures, processes, schedules or other items by Buyer under this Order will in any way limit or diminish Seller’s warranties hereunder.
  10. Indemnification. Seller agrees to defend, indemnify and hold Buyer, including its officers, directors, employees, parent, subsidiaries, affiliates and agent (collectively, the “Indemnified Party”), harmless of and from any claim, loss, cost, damage, settlement or judgment arising out of Seller’s provision of Goods to the Indemnified Party or the presence of Seller’s employees, agents or subcontractors on the Indemnified Party’s premises. This duty to defend, indemnify and hold harmless extends to any legal claim or proceeding, whether based on contract, warranty, infringement, strict liability in tort, negligence or other legal theory, and also extends not only to third party claims but also to any loss suffered directly by the Indemnified Party. Buyer is entitled to control Seller’s defense of Buyer hereunder.
  11. End of Life. In the event Seller intends to replace or discontinue the manufacture of a Good, Seller will give Buyer at least 6 months prior written notice and accept additional Orders for such Good until the end of the 6-month notice period. Seller may not discontinue manufacture of a Good until all outstanding Orders for such Good have been filled.
  12. Compliance with Laws; U.S. Export Controls. In performing work under this Order, Seller and its subcontractors will comply with all applicable federal, state, and local laws, and the rules and regulations of any governmental authority, and specifically the “Deemed Export” rule part 734.2(b)(2)(ii) of the Export Administration Regulations (EAR). This includes strict compliance with all applicable export control laws and regulations of the United States and all applicable trade regulations under U.S., foreign or other relevant jurisdictions. Buyer reserves the right to cancel any Order without penalty or liability to Buyer in the event Seller’s performance under this Order does not comply with such laws, rules and regulations. Seller will defend, indemnify and hold Buyer harmless for any non-compliance by Seller or its subcontractors.
  13. Mandatory Flow Downs. Seller and its subcontractors will comply with all mandatory flow down clauses, whether pursuant to a U.S. Government contract or otherwise, applicable to Buyer for Goods that are the subject of this Order. If this order is a subcontract under a Government Contract and the subcontract amount meets the required threshold amount and Seller is not otherwise exempted by the regulations. Seller agrees that the following contract clauses in effect on the Order date are incorporated by reference with the same force and effect as if they were given full text: (1) Executive Order 11246 equal opportunity clause as set forth in 41 CFR 60-1.4(a): (2) Vietnam Era Veterans’ Readjustment Act of 1974, as amended (VEVRAA”) equal opportunity clauses as set forth in 41 CFR 60-250.5 and 41 CFR 60-300.5: (3) Section 503 of the Rehabilitation Act of 1973, as amended, equal opportunity clause as set forth in 41 CFR 60-741.5; and (4) Executive Order 13496 of January 30, 2009, employee notice clause as set forth in 29 CFR Part 471, Appendix A to Subpart A.
  14. Assignment; Subcontracting. Seller may not assign its rights or obligations under this Order either voluntarily or by operation of law without the prior written consent of Buyer. Seller may not subcontract all or any substantial part of this Order without the prior written consent of Buyer. Any consent of Buyer will not relieve Seller of its contractual obligations under this Order.
  15. Applicable Law; Disputes. The interpretation of this Order and the rights and obligations of the parties hereto will be construed and governed by the laws enacted in the state of Illinois, excluding its choice of law rules and excluding the U.N. Convention on Contracts for the International Sale of Goods. The parties agree that, in any effort to enforce the terms and obligations hereunder, the complaining party will first notify the other party in writing of the alleged dispute and the parties will attempt in good faith to resolve the dispute through prompt discussion and meeting between representatives having decision-making authority regarding the dispute. If the dispute is not resolved by the 30th day after written notice of the dispute was first made, the complaining party may seek appropriate legal action provided that either party may seek preliminary injunctive or other equitable relief at any time to prevent irreparable harm. The parties agree to personal jurisdiction in the state and federal courts in the state of Buyer’s physical location and that venue is proper in the city of Buyer’s location. Upon mutual agreement, the parties may engage a neutral mediator to facilitate resolution of the dispute.
  16. Cumulative Remedies; Set-Off Rights. All of Buyer’s rights and remedies under this Order or at law are cumulative and non-exclusive. Payment to Seller under this Order is subject to set-off or recoupment for any present or future claims that Buyer or its affiliates may have against Seller or its affiliates.
  17. Limitation of Buyer’s Liability. Any liability of Buyer for any breach of any term or condition imposed upon it, whether such term or condition is contained in this Order or otherwise, will not exceed the purchase price for the Goods involved in the alleged breach. Buyer will not under any circumstance be liable for consequential or incidental damages.
  18. Entire Agreement. This Order (and any long term agreement under which this Order is issued, if one exists), constitutes the entire agreement between the parties with respect to the subject matter herein and therein and supersedes all previous proposals, both oral and written, negotiations, representations, commitments, writings and all other communications between the parties. No waiver, alteration, modification of or addition to this Order will be binding unless expressly agreed to in writing and signed by duly authorized representatives of Buyer and Seller. A waiver of any of the terms or conditions hereof will not be deemed a continuing waiver, but will apply solely to the instance to which the waiver is directed.
  19. Delivery Certification. By delivering products or services on the Order , the Seller certifies that such products or services are in compliance with all applicable requirements of the Order, and objective evidence of compliance is available and will be furnished to Buyer for review upon request.
  20. Compliance to Contract Requirements. The Seller is responsible to verify and demonstrate compliance to all Order requirements. Neither audit surveillance, inspection and/or tests made by Buyer or representatives of Buyer’s customers at Supplier’s facilities or at the facilities of the Seller’s sub-tier sources, or upon receipt at Buyer, relieves the Seller of the responsibility to furnish acceptable products or services that conform to all Order requirements, nor does it preclude subsequent rejection by Buyer or Buyer’s customers.
  21. Access to Supplier’s Facilities. During Order performance, the Seller shall grant reasonable access to Seller’s facilities to representatives of Buyer, Buyer’s customers, U.S. government and/or regulatory agencies for the purpose of evaluating Seller’s conformance to all Order requirements. When applicable, the access requirement shall be flowed down by Seller to Seller’s sub-tier sources.
  22. Unauthorized Facility Changes. During performance on the Order, the Seller shall give Buyer written notice before relocating any production, inspection or processing facilities; or transferring work between different facilities; or, when applicable, prior to initiating any changes in the source of major components procured by the Seller or making any other changes which may affect product quality, resale-ability or integrity. Such changes are subject to approval/disapproval by Buyer.
  23. Unauthorized Product Changes or Substitutions. The Seller may not make any changes or substitutions to any products or services required by the Order, drawing, specification, standard, or other applicable document without prior written authorization by Buyer. Authorization may be contingent on Buyer conducting an on-site review of the proposed product or service changes at the Seller’s facilities or the facilities of the Seller’s sub-tier sources.
  24. Conflicts. In the event of a conflict between the Order and the Terms & Conditions, the Order is to govern.
  25. Maintenance of Records. The Seller shall maintain all records that provide objective evidence of compliance to the Order requirements for a minimum of fifteen (15) years after the last delivery of products and/or services on the Order. Such records include drawings, specifications, work instructions, certifications and test reports and any other records generated in the course of procurement, manufacturing, testing, processing, inspecting, preserving, packaging, and shipping products to Buyer and when applicable include records generated by the Seller’s sub-tier sources. Prior to discarding, transferring to another facility, or destruction of such records, the Seller shall notify Buyer in writing and allow Buyer the opportunity to gain possession of such records including records at the Seller’s sub-tier sources.