Terms and Conditions of Purchase

ORDER & PURCHASE TERMS OF BLATCHFORD PRODUCTS LIMITED (“BLATCHFORD”)

1. APPLICABILITY

These terms and conditions of purchase (these “Terms”) are the only terms which govern the purchase of the goods (“Goods”) and services (“Services”) by [BLATCHFORD INC(“Buyer”) from the seller to whom the Purchase Order is addressed (“Seller”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby (a “Contract”), the terms and conditions of said contract shall prevail to the extent they directly conflict with these Terms. The purchase order incorporating or otherwise accompanying these Terms (the “Purchase Order” and together with these Terms, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller’s general terms and conditions of sale regardless whether or when Seller has submitted its sales confirmation or such terms. This Agreement expressly limits Seller’s acceptance to the terms of this Agreement. Fulfillment of this Purchase Order constitutes acceptance of these Terms.

2. DELIVERY OF GOODS AND PERFORMANCE OF SERVICES

Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If no delivery date is specified, Seller shall notify Buyer immediately and Buyer shall provide a Delivery Date. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. Buyer has the right to return any Goods delivered prior to the Delivery Date at Seller’s expense and Seller shall redeliver such Goods on the Delivery Date. Seller shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”) during Buyer’s normal business hours or as otherwise instructed by Buyer (including if no address is specified in the Purchase Order or Contract). Seller shall pack all goods for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s risk of loss and expense. Seller shall provide the Services to Buyer as described and in accordance with the Contract or that generally accompany the Goods. Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement.

3. QUANTITY 

If Seller delivers more or less than the quantity of Goods ordered, Buyer may reject any or all Goods in such delivery. Any such rejected Goods shall be returned to Seller at Seller’s sole risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.

4. SHIPPING TERMS

Delivery shall be made FOB Delivery Point. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Purchase Order.

5. TITLE AND RISK OF LOSS

Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.

6. INSPECTION AND REJECTION OF NONCOMFORMING GOODS

Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods. Buyer may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective, in compliance with the Supplier Requirements Manual (SRM 01) and require replacement of the rejected Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to Section 15. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Agreement, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.

7. PRICE

The price of the Goods and Services is the price stated in the Purchase Order unless agreed to otherwise in the Contract (the “Price”). If no price is included in the Purchase Order or the Contract, the Price shall be the price set out in Seller’s published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.

8. PAYMENT TERMS

Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Seller within 60 days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. Without prejudice to any other right or remedy it may have, Buyer may set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.

9. SELLER'S OBLIGATIONS REGARDING SERVICES

Seller shall: (a) before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services or provision of the Goods, including all applicable anti-bribery and anti-corruption laws, such as the US Foreign Corrupt Practices Act; (b) comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Buyer to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures; (c) remain fully responsible for the performance of each its subcontractors and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller’s own employees; and (d) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services.

10. WARRANTIES

Seller warrants to Buyer that all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, acceptance or payment of or for the Goods. Seller warrants to Buyer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. The warranties set forth in this Section 11 are cumulative and in addition to any other warranty provided by law or equity. If Buyer gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, within 30 days (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer, and, if applicable, (ii) repair or re-perform the applicable Services.

11. INDEMNIFICATION

Seller shall defend, indemnify and hold harmless Buyer and Buyer’s parent company, and its and their subsidiaries, affiliates, successors or assigns and its and their respective directors, officers, shareholders and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with (a) the Goods and Services purchased from Seller, (b) any allegation that Buyer’s or Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party, or (c) Seller’s negligence, willful misconduct or breach of the Agreement. Seller shall not enter into any settlement without Buyer’s prior written consent.

12. INTELLECTUAL PROPERTY OWNERSHIP

Seller agrees that Buyer will own all right, title and interest in the results of the Services provided or delivered to Buyer, including with respect to any Goods that are developed specifically for Buyer in accordance with Buyer’s specifications (such results or Goods, “Work Product”). All Work Product and all intellectual property rights in the Work Product will be the sole and exclusive property of Buyer. Seller assigns to Buyer all right, title and interest in and to the Work Product, including all worldwide intellectual property rights therein. If Seller has any rights to the Work Product that cannot be assigned to Buyer, Seller grants Buyer and its affiliates an exclusive (even as to Seller), irrevocable, perpetual, worldwide, fully paid up, royalty-free license to (with the right to sublicense) such Work Product. Seller irrevocably appoints Buyer as its attorney-in-fact to verify and execute documents and to do all other lawfully permitted acts to effectuate Seller’s assignment of intellectual property rights in and to the Work Product as required by this Section 15, and such appointment is coupled with an irrevocable interest. Seller will obtain any agreements necessary to comply with this Section, including procuring the necessary intellectual property assignments from its personnel, subcontractors and agents.

13. CONFIDENTIAL INFORMATION

All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, information relating to identified or identifiable individuals, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. Except for information relating to identified or identifiable individuals, this Section does not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. Seller agrees to comply with all applicable requirements of law relating to the privacy and protection of information relating to identified or identifiable individuals and Seller shall ensure that it has in place appropriate technical and organizational measures, policies and procedures enabling the same. Seller shall limit its use of such information solely to the provision of goods or services hereunder on behalf of Buyer. Seller shall enter into any additional terms required by law in Buyer’s discretion to ensure protection of such information.

14. INSURANCE

During the term of this Agreement and for a period of two years after the completion of all Services and acceptance of all Goods provided under this Agreement, Seller shall, at its own expense, maintain and carry insurance in full force and effect that a prudent insurance broker would recommend in light of the nature of the Goods and Services.

15. TERMINATION

In addition to any remedies that may be provided under these Terms, Buyer may terminate this Agreement with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods or the Seller’s delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Agreement upon written notice to Seller. If Buyer terminates the Agreement for any reason, Seller’s sole and exclusive remedy is payment for accepted Goods and Services.

16. GENERAL

No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such party’s failure or delay is caused by or results from an unforeseeable event that is not within its reasonable control. Seller shall not assign this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. The relationship between the parties is that of independent contractors. Except with respect to the Indemnitees, there are no third party beneficiaries. This Agreement is governed by and construed in accordance with the laws of the State of Ohio. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in the City of Miamisburg and County of Montgomery County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. The words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”. The parties agree that the court interpreting this Agreement may not apply a presumption that the terms of this Agreement will be more strictly construed against one party than against another for any reason. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Warranty, General Indemnification, Insurance, Confidential Information, and General. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.