General Terms and Conditions - Custom Manufacturing Services & East River Metals

East River Metals, Inc. and Custom Manufacturing Services, Inc. Purchase Order: General Terms and Conditions

Terms & Conditions

1. AGREEMENT.

This Purchase Order and all Attachments and References made a part thereof (“Agreement”) shall be governed by the law of the State in which Purchaser has its principal headquarters office and by the Uniform Commercial Code applicable thereunder, and all rights and duties of the parties under this Agreement shall be separate and in addition to any other or similar rights and duties which they may have under law. This Agreement embodies all of the terms of the understanding reached between the parties about the item(s) and services (if any) described herein. In interpreting this Agreement, no presumption or inference shall be deemed to arise for or against either party due to the preparation of this document. Neither this Agreement nor any right or duty thereunder may be assigned, subcontracted, or transferred at any time by either party without the prior written consent of the other party.

This Agreement replaces all quotations, proposals, offers, bids, acceptances, disclaimers, inquiries, and correspondence of every kind by, between, or for the parties concerning the aforesaid item(s) and services; provided, however, that the item(s) sold shall at least be, in quality, size, and extent, as described in Vendor’s lists, catalogues, brochures, and similar representations. All exhibits and other writings attached hereto (“Attachment(s)”) shall not be binding unless fully identified on the face of this Purchase Order, and in case of any inconsistency between the terms of any Attachment prepared by Vendor and any other terms of this Agreement, such other terms shall govern. Published industry and government codes, specifications, tests, and similar standards may, in lieu of being attached hereto as aforesaid, be incorporated herein by reference, but same (“Reference(s)”) must be expressly and fully identified in this Purchase Order.

This Agreement shall not be amended, altered, or modified except by a single instrument signed by representatives of Vendor and Purchaser, which instrument must expressly state that it undertakes to amend, alter, or modify this Agreement.

Vendor agrees that term of any Vendor-issued offer, quotation, proposal, acceptance, invoice, receipt, packing list, or any other document of any kind, whenever issued, and that no action by either or both parties (including Purchaser’s acceptances, inspections, or payments), whenever performed, shall modify, amend, or waive in any way retroactively or prospectively, any of the terms of this Agreement, and further that the terms of this Agreement shall exclusively apply to the item(s) and services regardless of whether any of said Vendor-issued documents may expressly state that the terms thereof shall amend, replace, control, or supplement the terms of this Agreement or of the purchase of the item(s) or services identified herein. Any contract formed as a result of an exchange of documents between Purchaser and Vendor shall consist of the terms of this Agreement and no others.

Vendor acknowledges and agrees that order place with Vendor by Purchaser by any means other than said purchase orders shall be, in the absence of the issuance of such a purchase order, accepted and undertaken by Vendor only with the understanding that performance by Vendor shall be governed exclusively by the same terms as stated in these General Terms and Conditions.

2. SHIPMENT AND DELIVERY.

Time is of the essence of this Agreement, including time of shipment and delivery. If the items(s) are not loaded for shipment for any reason by the shipping date stated herein, or if the item(s) shall fail to be delivered to the point of delivery stated herein by the delivery date (where Vendor has undertaken to provide for the transportation thereof), then Purchaser shall have the option to elect to reduce the unit price(s) of the items(s) due hereunder for each week of delay by an amount equal to 1% of said unit price(s). Said reductions shall only be to compensate Purchaser for the damages sustained by it due to such delay, such damages being difficult to determine and such reductions being the parties’ agreed estimate thereof. If and after such delays exceed 2 weeks, Purchaser shall have the option to elect by oral notice, confirmed within 5 days by written notice, to Vendor to terminate this Agreement, in which event, Purchaser shall not be liable to Vendor, or to Vendor’s shipping agent, under or in connection with this Agreement, except for the unit price(s) of item(s) and services received, in conformity with this Agreement, to the date of termination. If Vendor shall be required to fabricate or otherwise prepare off Purchaser’s premises any of the item(s) covered by this Agreement, and if at any time Vendor shall not have commenced or diligently pursued said fabrication or preparation, so that Purchaser shall have reason to believe that Vendor shall not be able to complete same within the time requirements of this Agreement, then Purchaser shall have the option to terminate this Agreement by sending written notice thereof to Vendor, effective on the date of such notice, in which event, Purchaser shall not be liable to Vendor under or in connection with this Agreement.

3. INSPECTION.

Purchaser shall have the right to reject item(s) and services not in conformity with the terms of this Agreement, and to return same to Vendor at Vendor’s expense. Purchaser’s inspection, or failure to inspect, or Purchaser’s payment thereof, shall not relieve Vendor of any obligation under this Agreement. If requested by Purchaser, Vendor shall promptly provide after-delivery field services for inspection, correction of defects, and assistance in the use, handling, repair, or modification of said item(s).

4. SERVICES.

If Vendor is required under this Agreement to provide services, the Purchaser shall have the option to elect to require Vendor to accept and execute Purchaser’s then standard construction contract to cover said services. If Vendor is required to enter mine property pursuant to this Agreement, Vendor’s employees or representatives shall be required to complete applicable MSHA hazard training prior to performing contracted services and to carry workers compensation, automobile, and liability insurance with limits as provided in Purchaser’s standard construction contract.

5. PRICE AND PAYMENT.

Except and to the extent otherwise stated in this Agreement, Purchaser shall pay to Vendor the total of the unit price(s) stated herein by mailing Purchaser’s check to Vendor’s address stated herein within 30 days of the date Purchaser receives and accepts the last of the item(s) and services provided hereunder. Notwithstanding the foregoing, however, Purchaser reserves the right to withhold any payment to secure itself against loss for defective item(s) or services received, for failure of Vendor to make payments properly to others for labor, material, or equipment incorporated or used in the item(s) or services, or for the purpose of satisfying any other claims for defective item(s) or services (whether or not such claims arise under this Agreement) which Purchaser may have against Vendor. In no event shall Purchaser be liable to Vendor for any price, charge or any other amount with respect to the item(s) or services except as stated in dollar amounts in this Agreement. The unit price(s) hereunder shall in all events be adjusted to take into account cash discounts effective on the date of receipt of the item(s) by Purchaser, or the date of the invoice, whichever is later, unless any invoice must be returned for correction, in which case, the date of receipt of the corrected invoice.

6. CHANGES.

Purchaser shall have the right to change the specifications or other descriptions of the item(s) or in the delivery dates thereof without any liability to Vendor, but not later than: (a) the date Vendor loads the first of the item(s) for shipment to Purchaser, to the extent such item(s) are held in inventory by Vendor; and (b) the date Vendor actually starts fabricating non-inventory item(s). Purchaser shall also have the right to make such changes after said date, but in each event, Purchaser shall pay to Vendor the amount of Vendor’s additional direct costs, if any, which shall have resulted directly and exclusively from Purchaser’s directed changes.

7. CANCELLATION FOR CONVENIENCE.

At any time, Purchaser shall have the right for its own convenience to cancel this Agreement without any liability to Vendor, but not later than: (a) the date Vendor loads the first of the item(s) for shipment to Purchaser, to the extent such item(s) are held in inventory by Vendor; and (b) the date Vendor actually starts fabricating non-inventory item(s), or starts to perform the services on Purchaser’s property. Purchaser shall also have the right for its own convenience to cancel this Agreement after said dates, but in such event, Purchaser shall pay to Vendor the unit price(s) for each of the item(s) shipped to date, and the proportionate cost of services performed to date, plus, the amount of Vendor’s additional direct costs, if any, which shall have resulted directly and exclusively from Purchaser’s said termination.

8. INDEMNITIES.

Vendor hereby indemnities and agrees to defend and save harmless Purchaser (and its employees) from any and all liability, loss, damage, cost, attorneys’ fees, and any other expense of any kind, which arise out of any claim or suit for

injury to or death of any person,
damage to any property,
public charges and penalties, or
any liability or lien, caused by, result from, or in conjunction with, Vendor’s or Purchaser’s acts or omissions (or of Vendor’s or Purchaser’s servants, agents, suppliers, or subcontractors) in furnishing the item(s) hereunder or in the performance of any services in connection therewith. Vendor assumes all liability for any injuries, death or damages to its agents, employees or persons present at Vendor’s request on Purchaser’s premises, regardless of whether such persons are acting within or outside of the scope of employment or other authority. Vendor also hereby indemnities and agrees to defend and save harmless Purchaser (and its employees) from any and all liability, royalties, fees, loss, damage, cost, attorneys’ fees, and any other expenses of every kind, which arise out of any claim or suit for alleged infringement of patents, trademarks or copyrights, or from royalties involved in consequence of the purchase or use of the material covered thereby, which involve in any way any of the item(s) or services covered by this Agreement.

9. COMPLIANCE WITH LAWS.

Vendor represents to Purchaser that Vendor has complied and will comply with all Federal, State, and Local laws and regulations applicable to the item(s) and services covered by this Agreement, including all safety, environmental, and labor laws. Vendor shall provide a copy of the applicable Material Safety Data Sheet (MSDS) to the shipping address for ordered products. Purchaser and Vendor shall adhere to the contractual obligations of Executive Order 11246 (38 USC 2012) of the Vietnam Era Readjustment Assistance Act and Section 503 of the Rehabilitation Act.

10. UNAUTHORIZED DISCLOSURE.

Vendor shall not, without Purchaser’s prior written consent, publish or communicate to others any information or data with respect to this Agreement. Vendor shall not, without said consent, use or allow the use, whether in writing or in oral form, by its suppliers, subcontractors, employees, or agents, of Purchaser’s name, trademarks, logos, publications, photographs of Purchaser’s facilities or equipment, or Vendor’s and Purchaser’s business relationship, in connection with marketing or business activity.

11. NOTIFICATION OF CHANGE.

Vendor will notify the purchaser prior to order acknowledgement of any changes in the product or service so that purchaser may determine whether the changes affect quality of a finished device and whether prior written consent of end user is required.

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