TERMS AND CONDITIONS OF PURCHASE

 

1. Offer and Acceptance: THESE TERMS AND CONDITIONS SHALL BE INCORPORATED INTO AND MADE PART OF BUYER’S PURCHASE ORDER (“PURCHASE ORDER”) AND SHALL APPLY TO THE EXCLUSION OF ANY TERMS AND CONDITIONS OF SELLER. THE TERMS AND CONDITIONS OF THE PURCHASE ORDER GOVERN THE PURCHASE AND SALE OF THE PRODUCT DESCRIBED ON THE PURCHASE ORDER (“PRODUCT”). SELLER ACCEPTS THE TERMS AND CONDITIONS OF THE PURCHASE ORDER BY SIGNING THE ACCEPTANCE COPY OF THE PURCHASE ORDER AND RETURNING IT TO BUYER PROMPTLY. EVEN WITHOUT SUCH WRITTEN ACKNOWLEDGMENT, SELLER'S FULL OR PARTIAL PERFORMANCE UNDER THE PURCHASE ORDER SHALL CONSTITUTE ACCEPTANCE OF THE TERMS AND CONDITIONS OF THE PURCHASE ORDER. THE PURCHASE ORDER CONSTITUTES BUYER’S OFFER TO SELLER, WHICH BUYER MAY REVOKE AT ANY TIME BEFORE SELLER ACCEPTS IT. THE PURCHASE ORDER IS NOT AN ACCEPTANCE BY BUYER OF ANY OFFER TO SELL, ANY QUOTATION, OR ANY PROPOSAL. REFERENCE IN THE PURCHASE ORDER TO ANY SUCH OFFER TO SELL, QUOTATION, OR PROPOSAL SHALL NOT CONSTITUTE A MODIFICATION OF ANY OF THE TERMS AND CONDITIONS OF THE PURCHASE ORDER. TERMS AND CONDITIONS DIFFERENT FROM OR IN ADDITION TO THE TERMS AND CONDITIONS OF THE PURCHASE ORDER, WHETHER CONTAINED IN ANY ACKNOWLEDGMENT OF THE PURCHASE ORDER, OR WITH DELIVERY OF ANY GOODS OR SERVICES UNDER THE PURCHASE ORDER, OR OTHERWISE, SHALL NOT BE BINDING ON BUYER, WHETHER OR NOT THEY WOULD MATERIALLY ALTER THE TERMS AND CONDITIONS OF THE PURCHASE ORDER, AND BUYER HEREBY REJECTS ANY SUCH ADDITIONAL OR DIFFERENT TERMS. THE TERMS AND CONDITIONS OF THE PURCHASE ORDER MAY BE MODIFIED ONLY BY A WRITTEN DOCUMENT SIGNED BY DULY AUTHORIZED REPRESENTATIVES OF BUYER AND SELLER.

2. Purchase Order Number: The number of the Purchase Order must appear on all invoices, shipping documents, labels and all correspondence and other references thereto.

3. Definition of “Product”: As used herein, “Product” means (a) equipment, materials, supplies, drawings, data and other articles or property or (b) the services, as the case may be, which are to be delivered under the Purchase Order and includes design, erection, installation, inspection, testing and expediting as specified therein or as required to supply or furnish the same.

4. General Definitions: As used herein, “Buyer” means Lamart Corporation or Lamart California, Inc, and “Seller” means the party who accepts the Purchase Order. Unless the context otherwise clearly requires, references to the plural include the singular and the singular the plural, and “or” has the inclusive meaning represented by the phrase “and/or” and “including” and its variants has the meaning represented by the phrase “including, without limitation”.

5. Default: Time is of the essence of the Purchase Order. Buyer may by written notice of default to Seller (a) terminate all or any part of the Purchase Order in any one of the following circumstances: (i) if Seller fails to perform within the time specified herein or any extensions agreed to by Buyer in writing; or (ii) if Seller fails to perform any of the other provisions of the Purchase Order, or so fails to make progress as to endanger performance of the Purchase Order in accordance with its terms, and in the circumstances set out in clause (ii) 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) procure, on such terms as it shall deem appropriate, goods or services similar to those so terminated. Seller shall continue performance of the

Purchase Order to the extent not terminated and shall be liable to Buyer for any excess costs for such similar goods or services. As an alternate remedy, and in lieu of termination for default, Buyer, at its sole discretion, may elect to extend the delivery schedule or waive other deficiencies in Seller's performance, in which case an equitable reduction in the purchase price shall be negotiated. If Seller for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of the Purchase Order, Seller shall promptly notify Buyer in writing. If Seller does not comply with Buyer's delivery schedule, Buyer may require delivery by fastest way and charges resulting from the premium transportation must be fully prepaid and absorbed by Seller. The rights and remedies of Buyer provided in this Section shall not be exclusive and are in addition to any other rights and remedies provided by law, at equity or under the Purchase Order.

6. Delivery; Title; Risk of Loss; Import/Customs Compliance: Unless the Purchase Order expressly states otherwise, (a) all deliveries of the Product from a United States location to Buyer’s location (in the United States) are F.O.B., Buyer’s facility, and (b) all deliveries of the Product from an international location to Buyer’s location (in the United States) are DDP, Buyer’s facility. Title to the Product shall pass to Buyer upon acceptance at the final delivery point. Risk of damages or loss following shipment and prior to acceptance by Buyer shall be the responsibility of Seller. Seller assumes all responsibility and liability for any shipments covered by the Purchase Order requiring any government import clearance. If government authorities declare or otherwise impose countervailing duties, antidumping duties or retaliatory duties on the Product imported under the Purchase Order, Buyer reserves the right to terminate the Purchase Order in accordance with the Default provisions of the Purchase Order. Seller shall be debited for any duties, fees or freight incurred by Buyer due to Seller’s failure to comply with the Purchase Order.

7. Deferment of Delivery; Force Majeure: In the event of fire, flood, strike, lockout, other labor disturbances, accident, war or any other cause whatsoever beyond the reasonable control of Buyer which prevents or interferes with its acceptance or use of the Product, Buyer may defer delivery without obligation or liability to Seller.

8. Quantities; Installment; Count: Unless the Purchase Order expressly states otherwise, (a) delivery of the Product by Seller in excess or beyond that provided for in the Purchase Order shall not obligate Buyer under any circumstances, and (b) excess quantities of the Product may be returned to Seller, and Seller shall reimburse Buyer for any costs or expenses, including all transportation charges incurred by Buyer, with respect thereto. If the Purchase Order provides for delivery in installments from time to time and a default occurs under any such installment, this default shall, at Buyer’s option, constitute a default under the Purchase Order. Buyer’s count of the Product delivered shall be deemed conclusive.

9. Prices: Performance of the Purchase Order shall be at a price no higher than specified therein without Buyer’s written agreement. Seller warrants that the price charged for the Product is the lowest price charged by Seller for a similar good or service. If Seller charges a lower price for a similar good or service, Seller must notify Buyer and apply that price to all of the Product. If at any time before full performance of the Purchase Order, Buyer notifies Seller in writing that Buyer has received a written offer from another supplier for a similar good or service at a price lower than the price charged for the Product, Seller must immediately meet the lower price for all of the Product. If Seller fails to meet the lower price, Buyer, at its option, may immediately terminate the Purchase Order without obligation or liability to Seller. If no price is specified in the Purchase Order, Seller agrees to deliver the Product at the lowest price charged by Seller for a similar good or service.

10. Additional, Charges, Packaging: Additional charges, including charges for (a) loading, drayage, blocking, dunnage, or lighterage, or (b) packaging, such as containers, boxes, drums, barrels, shells, reefs, cores and the like, shall not be paid by Buyer unless specified in the Purchase Order. Items of packaging shall not be returned to Seller.

11. Taxes: Federal, state and local taxes imposed upon the sale of the Product shall be included in the price and paid by Seller, unless the Purchase Order expressly states otherwise.

12. Payment: Invoices shall contain the number of the Purchase Order, description of the Product, item number, quantities, unit prices, and total purchase price. All taxes shall be stated separately. Unless the Purchase Order expressly states otherwise, payment shall be made on the terms of sixty (60) days from receipt of invoice and conforming Product. Cash discount periods shall be computed from either the date of actual delivery of the Product or the date an acceptable invoice is received, whichever is later. All claims for money due or to become due from Buyer shall be subject to deduction by Buyer for any setoff or counterclaim arising out of this or any other of Buyer’s Purchase Orders with Seller.

13. Inspection: All Product shall be subject to inspection and test by Buyer and its customers at all times and places, including the period of manufacture, and in any event prior to final acceptance. Failure to inspect and accept or reject Product or failure to detect defects by inspection shall neither relieve Seller from responsibility for such Product as is not in accordance with the Purchase Order nor impose any liability upon Buyer for such Product as is not in accordance with the Purchase Order. Buyer’s payment for the Product shall not constitute its acceptance of the Product. Product rejected may be returned to Seller at its expense. Payment, if any, made for any Product rejected hereunder shall be promptly refunded by Seller. Seller shall provide and maintain an inspection and process control system acceptable to Buyer and its customers covering the Product. Records of all inspection work by Seller shall be kept complete and available to Buyer and its customers during the performance of the Purchase Order and for ten (10) years after Seller's completion of the Purchase Order. If any of the Product is found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of the Purchase Order, then Buyer, in addition to such other rights and remedies it may have by law, at equity or under the Purchase Order, at its sole discretion, may require Seller to replace or correct, at Buyer’s option and at Seller's cost, any defective Product. If Seller fails to correct defects in or replace defective Product within ten (10) days from the date Buyer notifies Seller of the defect, Buyer may, upon ten (10) days prior written notice to Seller, either (i) make such corrections or replace such Product and charge Seller for all costs incurred by Buyer, or (ii) reject such Product, in which event Seller shall be obligated to refund the purchase price and make all necessary arrangements, at Seller's sole cost, expense and risk, for the return of such Product to Seller. No inspection, test, delivery or acceptance of, or payment for, Product shall relieve Seller from responsibility for warranty or any latent or patent defects, fraud or negligence. 

14. Guaranty: Seller represents and warrants that (a) all Product is free of any claim of any nature by any third person and that Seller has and shall convey clear title to Buyer, and (b) for one (1) year from the date of acceptance, unless the Purchase Order expressly states otherwise, all Product (i) shall be of merchantable quality, free from all defects in design, workmanship and materials, and fit for the particular purposes for which they are purchased and (ii) shall be in strict accordance with the specifications, samples, drawings, designs or other requirements (including performance specifications) approved or adopted by Buyer. Seller shall indemnify and hold Buyer and its subsidiaries, affiliates and agents, and their respective officers, directors, shareholders, and employees, and Buyer’s customers (collectively, “Indemnitees”) harmless from and against and pay all damages of any nature whatsoever, including all direct, indirect, special, exemplary, incidental or consequential damages of every kind whatsoever, arising out of, by reason of, or in any way connected with any breach of any of these warranties. Buyer’s inspection, test, acceptance or use of the Product shall not affect Seller's obligations under these warranties. Buyer is entitled to all legal and equitable warranty claims. Seller shall replace or correct, at Buyer’s option and at Seller's cost, any nonconforming Product. If Seller fails to correct nonconformance in or replace nonconforming Product within ten (10) days from the date Buyer notifies Seller of the nonconformance, Buyer may, upon ten (10) days prior written notice to Seller, either (i) make such corrections or replace such Product and charge Seller for all costs incurred by Buyer, or (ii) revoke its acceptance of such Product, in which event Seller shall be obligated to refund the purchase price and make all necessary arrangements, at Seller's sole cost, expense and risk, for the return of such Product to Seller. All warranties of Seller herein or which are implied by law shall survive any inspection, test, delivery, acceptance or payment by Buyer. Any attempt by Seller to limit, disclaim, or restrict these warranties or any remedies of Buyer, by acknowledgment or otherwise, in accepting or performing the Purchase Order, shall be null, void, and ineffective without Buyer’s written consent.

15. Indemnification: Seller shall indemnify and hold Buyer and all other Indemnitees harmless and, upon request, shall defend each of them, from and against any and all claims, demands, litigation or proceedings of whatever kind, whether based upon negligence, breach of express or implied warranty, strict liability or any other theory, and from and against any and all direct, indirect, special, exemplary, incidental or consequential damages of every kind whatsoever, arising out of, by reason of, or in any way connected with the Product, the design, manner of preparation, manufacture, construction, completion, or delivery or non-delivery of any Product by Seller, any breach by Seller of any of its obligations under the Purchase Order, or any other act, omission or negligence of Seller or any of Seller's employees, workers, servants, agents, subcontractors or suppliers. Seller shall, upon request, pay or reimburse Buyer and all other Indemnitees for all costs and expenses, including attorneys' fees, as incurred by such Indemnitee in connection with any such claim, demand, litigation, proceeding, loss or damage. In no event shall Seller enter into any settlement without Buyer’s prior written consent. BUYER'S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THE PURCHASE ORDER IS LIMITED TO THE AMOUNT PAID BY BUYER FOR THE PRODUCT. TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, BUYER SHALL NOT BE LIABLE UNDER THE PURCHASE ORDER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS OR REVENUES, EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

16. Recall; Insurance: Seller shall be solely liable for all costs or damages associated with any voluntary or involuntary recall of defective or potentially defective Product or any products containing or incorporating such Product. Seller shall be solely responsible for administering any recall or shall fully participate in the administration of any recall conducted by Buyer or its customer in relation to the Product as Buyer may so direct. Each of Buyer and Seller shall cooperate in making available records and other information reasonably required by the other in connection with any recall. Records associated with manufacturing and certification of product shall be kept by the Seller for at least ten (10) years. Seller shall furnish Buyer with certificates from its insurance carriers showing that Seller carries Worker’s Compensation, Commercial General Liability, including Products Liability (at a minimum of $5,000,000 or the equivalent in other currency), Completed Operations and Contractual Liability, All Risks Property (including coverage for tooling and material maintained by Seller and owned by Buyer), and Comprehensive Automobile insurance coverage. Certificates must show the amount of coverage, number of policy, and date of expiration, and with respect to Product Liability coverage, must name Buyer as an additional named insured. Seller may not terminate or modify insurance coverage without informing Buyer in advance and showing new equivalent coverage. 

17. Changes; Cancellation: Buyer has the right on written notice to Seller to change the quantity, scope, specifications, time of performance or other content of the Purchase Order. If any such change increases or decreases the amount of Seller’s cost, Buyer and Seller shall negotiate a fair and equitable adjustment of the purchase price of the Product. Buyer has the right at any time on written notice to Seller to terminate the

Purchase Order as to all or any portion or the Product not shipped at such time. Upon such termination, Buyer’s liability shall be limited to reasonable termination charges mutually agreed by Seller and Buyer, provided that Seller must specify any proposed charges in writing within fifteen (15) days after termination. Such charges shall not be made in favor of Seller with respect of Product which is Seller’s standard stock. Termination as provided in this Section shall not relieve Buyer or Seller of any of their obligations as to any Product delivered under the Purchase Order or which become the property of Buyer as aforesaid. Seller may not make any change in drawings, design specifications, scope of work to be performed, Seller’s facility location, Seller’s sub-tier suppliers, time and place of delivery and method of transportation without Buyer’s written acknowledging the change. Any such changes by the Seller not authorized by the Buyer may result in termination of this Agreement.

18. Intellectual Property: On being notified, Seller shall promptly investigate and defend, as its expense, any suit or proceeding in which Buyer or any other Indemnitee are made defendants or claimed potential defendants for any alleged infringement, contributory infringement, inducement of infringement, or unauthorized or unlawful use of any patent, copyright, trademark, trade secret, mask work, proprietary data, or other information, or claim of right, title or interest by another party in any Product (or related documentation), in any case resulting from the sale, use, lease or other disposition of any Product under the Purchase Order (collectively, “Infringement”). Seller shall pay and discharge all judgments or decrees rendered in any such suit or proceeding against Buyer or any other Indemnitee. In no event shall Seller enter into any settlement without Buyer’s prior written consent. If Seller fails to promptly investigate, defend or settle, then Buyer shall, following notification to Seller, have the right from that time on to have sole control of the defense of such suit or proceeding and all negotiations for its settlement or compromise, and Seller shall pay, as they become due, all costs, expenses, and reasonable attorneys’ and experts’ fees incurred by Buyer in undertaking such actions and any judgments or decrees which may be rendered against or any settlements or compromises that may be entered into by Buyer or any other Indemnitee relating to a claim indemnified against under the Purchase Order. Seller shall indemnify and hold Buyer and all other Indemnitees harmless from all costs, expenses, liabilities, damages and attorneys’ and experts’ fees arising from any alleged or actual Infringement and shall pay all judgments and other amounts payable or any settlement or compromise arising from all suits or proceedings involving Infringement. In addition, Seller shall, at its own expense and at Buyer’s option, either procure for Buyer the right to continue using the allegedly infringing Product, replace it with a noninfringing equivalent or remove it and refund the purchase price and the transportation and installation costs thereof.

19. Drawings, Tools, Etc.: Tangible or intangible property of any nature furnished to Seller by Buyer or specifically paid for in whole or in part by Buyer, and any replacements or attachments, are the property of Buyer and, unless the Purchase Order expressly states otherwise, shall be used only by Seller solely to deliver the Product to Buyer. Seller shall not substitute any property or take any action inconsistent with Buyer's ownership of such property. While in Seller's custody or control such property shall be held at Seller's risk, shall be kept insured by Seller at its expense for its replacement cost with loss payable to Buyer and shall be subject to removal at Buyer's written request, in which event Seller shall prepare such property for shipment and redelivery to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller's expense.

20. Confidentiality. Publicity: Seller understands and agrees that the Purchase Order shall be kept confidential and, in particular, it shall take all reasonable measures to insure that specific or technical data, specifications, engineering, drawings, blueprints and like information and data identified by Buyer as, or known, or reasonably should be known, by Seller to be, proprietary or trade secret information shall be so kept confidential and disclosed within Seller’s organization only on a need-to-know basis. Seller shall not issue any publicity, or advertising relations to the Purchase Order or the Product without Buyer’s prior written consent.

21. Compliance with Laws, Regulations, Etc.: Seller represents and warrants that it is in compliance with, and all of the Product ordered has been produced or provided in compliance with, the applicable provisions of all federal, state, or local laws or ordinances and all related lawful orders, rules and regulations.

22. Subcontracting & Nondiscrimination in Employment: Unless the Purchase Order is exempt in accordance with the rules and regulations issued under Executive Orders No. 11141, 11246, 11375, 11625, 11701 and 11758, Seller agrees to comply during the performance of the Purchase Order with each and all of the nondiscrimination, equal opportunity and utilization of minority, small business, labor surplus area and woman-owned business clause provisions set fourth therein or with any amending or superseding order, law or regulation, the provisions of each being deemed by this reference to be expressed incorporated herein as though set forth in full.

23. Non-Waiver: Buyer’s exercise or failure to exercise or enforce any right or remedy granted or provided by the Purchase Order or its acceptance of or payment for the Product shall not be deemed as or construed to be a waiver of any right or remedy it may have for Seller’s then existing or subsequent default, breach or compliance thereunder. No waiver by Buyer of default or breach by Seller shall be deemed a waiver of any subsequent default or breach.

24. Assignment: Neither the Purchase Order in its entirety nor any rights of interest therein may be assigned by Seller without the written agreement of Buyer. Any such attempted assignment shall be void.

25. Law Governing: The construction, interpretation and performance of the Purchase Order and Seller’s acceptance thereof and all transactions thereunder shall be governed by the laws of the State of New Jersey without regard to conflicts of law principles. Buyer and Seller agree that the proper venue for all actions arising in connection herewith shall be deemed exclusively proper in state court in Passaic County, New Jersey or in the federal court for the District of New Jersey in Newark, New Jersey, and the parties agree to submit to such jurisdiction and to waive any claim that such courts are an inconvenient forum. Further, the United Nations Convention on the International Sale of Goods (1980) (as amended from time to time) shall not apply to the Purchase Order or any transactions thereunder.

26. Entire Agreement; Waiver; Modification: The Purchase Order constitutes the entire agreement between Buyer and Seller relating to the purchase and sale of the Product. No subsequent change or modification of the Purchase Order shall be binding upon Buyer unless accepted by it in writing. No course of prior dealings between the parties and no usage of the 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. No claim or right arising out of a breach of the Purchase Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless supported by consideration and in a writing signed by the aggrieved party.

27. Certificates of Analyses/Certificates of Conformance/Certificates of Inspection: The Supplier is required to supply material certifications as it applies for all services provided.

*IMPORTANT NOTE: Lamart Corporation and Lamart California, Inc.’s Suppliers (including material suppliers, services, and subcontractors) shall grant Lamart Corporation, Lamart California, Inc., Lamart Corporation’s customer, Lamart California, Inc.’s customers, the FAA, and/or other applicable regulatory bodies the right of access for review of applicable records and/or on-site inspections, tests, audits, or investigations.


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